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2017 DIGILAW 981 (ORI)

Lakhe @ Laxman Bag v. State of Orissa

2017-09-04

D.DASH, S.C.PARIJA

body2017
JUDGMENT : S.C. Parija, J. The petitioner, who is a detenu under the National Security Act, 1980, has filed this writ petition in the nature of habeas corpus, challenging the order of his detention dated 19.10.2016 (Annexure-1), passed by the District Magistrate, Balangir, and the order of the Government of Odisha in the Department of Home (Special Section) dated 26.10.2016 (Annexure-2), confirming the said order of his detention as illegal and unconstitutional, with a prayer to direct his release from custody forthwith. 2. Relevant portion of the detention order dated 19.10.2016, passed by the District Magistrate, Balangir, under Section 3 (2) of the National Security Act, reads as under:- “Whereas, I, District Magistrate, Balangir is subjectively satisfied and convinced from the incidents and occurrences as enumerated below about your habitual involvements in the criminal activities. Having weighed the evidences provided, I consider it expedient to detain you with a view to prevent you from acting any manner pre-judicial to the maintenance of public order in the police limits of Kantabanji Police Station, Turekela Police Station and other parts of the district. I, therefore, pass this order for your detention U/s. 3(2) of National Security Act, 1980. It is clear that, you are a die-hard criminal and your criminal and antisocial activities have come to notice since 2009. You are involved in as many as 11 G.R. Cases and under trial in the courts of law. You have constantly unleashed a reign of terror in the area of Kantabanji and Turekela Police Stations as well as other parts of Balangir district and your such activities have become a matter of concern for maintenance of public order in those areas. You have developed association with other notorious anti-socials for earning easy money from innocent labourers by sending them to outside states to work as bonded labourers. You do not have any known source of income but use to spend lavishly. Your activities are clearly detrimental for the maintenance of Public order and peace. You are in habit of indulging yourself in creating hatredness in the mind of innocent people against the members of minority community at Kantabanji. You are also involved in other heinous crime like kidnapping, threatening to Govt. Officials, deterring them from discharging lawful duties being armed with deadly weapons like lathi, sword etc. You are in habit of indulging yourself in creating hatredness in the mind of innocent people against the members of minority community at Kantabanji. You are also involved in other heinous crime like kidnapping, threatening to Govt. Officials, deterring them from discharging lawful duties being armed with deadly weapons like lathi, sword etc. Your anti-social activities went to an extreme height that on 7.9.2016 at 9.30 PM, the anti-social along with your associates namely, Omkar Behera, Nageswar Deep, Partham Behera, Narendra Sandh, Sushanta Mohapatra and others entered inside the premises of Kantabanji Police Station, manhandled the IIC, Kantabanji PS deterring him from discharging lawful duty and could dare to snatch away one of the accused namely Debaraj Behera from the Police custody who was detained in Kantabanji PS Case No. 193/2016. You are so desperate that you are simply ignoring the binding of law of land for which the people are not coming forward out of fear to raise any complain against you. In spite of all measures taken by the Police, you did not stop your activities and went on committing crime one after another even while under bail. Due to your such criminal activities with the support of your associates, the public order is completely disturbed in the above mentioned areas and is likely to further deteriorate, if you are not detained under the NATIONAL SECURITY ACT1980.” 3. With the above observations, the detaining authority has cited thirteen criminal cases in which the petitioner is alleged to have been involved, which are as under: 4. The detaining authority has then proceeded to observe as under: Sl. No. Case numbers with dates Offences U/Secs. 1. Khariar P.S. No. 09, dt. 07.01.2009 365/368/34 IPC 2. Kantabanji P.S. No.100, dt. 14.08.2012 341/294/323/147/148/ 506/149 IPC 3. Kantabanji P.S. No.39, dt. 02.3.2014 294/507 IPC 4. Turekela P.S. No.30, dt. 09.4.2014 147/148/341/294/323/ 427/325/171-C/307/ 149 IPC & 25/27 Arms Act 5. Turekela P.S. No.109, dt. 03.11.2015 336/353/294/355/34 IPC 6. Kantabanji P.S. No.37, dt. 25.2.2016 294/507 IPC 7. Turekela P.S. No. 45, dt.01.5.2016 147/148/294/354/323/ 506/149 IPC & 3(1)(x) SC & ST (PA) Act 8. Kantabanji P.S. No.192, dt. 07.9.2016 143/341/332/353/506/ 294/225/307/323/149 IPC & 7 Cr. L.A. Act 9. Kantabanji P.S. No.193, dt. 07.9.2016 143/336/427/153(A)/149 IPC 10. Titilagarh GRPS Case No.34m, dt. 08.9.2016 143/427/379/149 IPC 11. Titilagarh CRPS Case No.35, dt. 08.9.2016 143/144/294/323/379/5 06/427/149 IPC 12. Kantabanji P.S. non-FIR No.157, dt.26.9.2016 110 Cr.P.C. 13. Kantabanji P.S. No.192, dt. 07.9.2016 143/341/332/353/506/ 294/225/307/323/149 IPC & 7 Cr. L.A. Act 9. Kantabanji P.S. No.193, dt. 07.9.2016 143/336/427/153(A)/149 IPC 10. Titilagarh GRPS Case No.34m, dt. 08.9.2016 143/427/379/149 IPC 11. Titilagarh CRPS Case No.35, dt. 08.9.2016 143/144/294/323/379/5 06/427/149 IPC 12. Kantabanji P.S. non-FIR No.157, dt.26.9.2016 110 Cr.P.C. 13. Kantabanji P.S. SDE No.62, dt.29.9.2015 “You were arrested by the IIC, Kantabanji P.S. on 7.9.2016 in connection with Kantabanji P.S.Case No.192 dated-7.9.2016 U/s 143/341/332/353/ 506/294/225/307/323/149 IPC/7 Cr.L.A. Act (Vide G.R.No. 393/2016) in the file of JMFC, Kantabanji and remanded to judicial custody on 8.9.2016 U/s. 167 Cr.P.C. by JMFC, Kantabanji. You got the bail in the case on 29.09.2016. You have been remanded to judicial custody, Kantabanji in P.S.Case No. 193 dated-7.9.2016 U/s.143/336/427/153(A)/149 IPC and presently housed in the Sub-jail, Kantabanji. You have applied for bail in this case and your bail petition has already been scheduled for hearing in the court of Addl. Session Judge, Kantabanji. There is every possibility of your release on bail shortly and certainly after your release on bail, you will again engage yourself in usual anti-social and criminal activities in the area creating disturbance in public order and creating reign of menace and terror in the area.” 5. On the basis of the facts and circumstances detailed above, the detaining authority has come to the following conclusion: “Your criminal background as discussed above is enough to show that the ordinary law of the land is not sufficient to prevent you from becoming a threat to public order and tranquility in Kantabanji and Turekela PS area as well as other areas of the district and only option left is to invoke the extra ordinary provisions of National Security Act, 1980 so as to prevent you from coming out of jail and acting in a manner pre-judicial to the maintenance of public order. Hence, the detention order.” 6. The said detention order has been approved by the State Government vide its order dated 26.10.2016, in exercise of powers conferred under Section 3(4) of the National Security Act, 1980. 7. Learned counsel for the petitioner submitted that the petitioner is a permanent resident of village Khutulumunda under Turekela police station, in the district of Balangir, where the petitioner resides with his family members, consisting of his wife and two children. 7. Learned counsel for the petitioner submitted that the petitioner is a permanent resident of village Khutulumunda under Turekela police station, in the district of Balangir, where the petitioner resides with his family members, consisting of his wife and two children. It was submitted that the petitioner along with his wife have been in public life since the year 2000 and his wife Smt. Lili Bag was a candidate of Bharatiya Janata Party for the post of member of Balangir Zilla Parishad from Zone-11 constituency. It was submitted that the petitioner has been associated with many philanthropic works in the district and on account of his goodwill, the Bharatiya Janata Party had given him a ticket to contest for Kantabanji Assembly Constituency for the Orissa Legislative Assembly Election 2014. It was submitted that the petitioner holds the post of President of Yadav Samaj of Balangir District and he is the Vice-President of Bharatiya Janata Party, Balangir District. It was submitted that being in public life, he has been falsely implicated in many criminal cases on fabricated and frivolous allegations, which are politically motivated. 8. Learned counsel for the petitioner submitted that the detaining authority has taken into consideration many stale cases, which have no proximity with the impugned order of detention. It was submitted that out of the thirteen criminal cases registered against the petitioner, as detailed above, four criminal cases have been registered on the same day i.e. 07.9.2016 on omnibus allegations, with no specific overt act being attributed to the petitioner. It was submitted that even accepting the allegations made in the criminal cases under item nos.8 to 11 of the impugned detention order, the same may at best make out a case of breach of ‘law and order’ and not ‘public order’. 9. It was further submitted that the detaining authority has passed the order mechanically and without application of mind inasmuch as, no reasons have been assigned as to how the involvement of the petitioner in the aforesaid criminal cases amount to threat to public order. It was further submitted that the findings of the detaining authority recorded in the impugned detention order that the petitioner has already been granted bail on 29.9.2016 in connection with Kantabanji P.S. Case No.192, dt. 07.9.2016 and he having applied for bail in Kantabanji P.S. Case No.193 dt. It was further submitted that the findings of the detaining authority recorded in the impugned detention order that the petitioner has already been granted bail on 29.9.2016 in connection with Kantabanji P.S. Case No.192, dt. 07.9.2016 and he having applied for bail in Kantabanji P.S. Case No.193 dt. 07.9.2016, there was every possibility of he being released on bail and once again engaging himself in usual antisocial and criminal activities, is without any basis. It was submitted that the order of preventive detention could not have been passed on mere apprehension, in absence of any cogent and credible material in support of the same. It was further submitted that such approach of the detaining authority in resorting to preventive detention of the petitioner amounts to circumventing the ordinary process of criminal law. 10. It was accordingly submitted that as the criminal cases registered against the petitioner, as detailed above, are on the basis of false and frivolous allegations, made on extraneous political consideration and most of them are stale cases, having no proximity with the impugned order of detention, the same cannot be sustained in law and is liable to be quashed. 11. Learned counsel for the State with reference to the counter affidavit filed on behalf of opposite party nos.1 and 2 submitted that the impugned order of detention has been passed under Section 3(2) of the National Security Act, 1980, on proper analysis of the materials placed before the detaining authority, in order to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order. It was submitted that the petitioner is a habitual offender and has several criminal antecedents, as has been detailed in the detention order, which have proximity with the issuance of the detention order. In this regard, it was submitted that the antisocial and criminal activities of the petitioner are prejudicial to the maintenance of the public order. It was further submitted that on the basis of the criminal antecedents of the petitioner, it was felt that the punitive and preventive provisions available under the ordinary criminal law are not deterrent enough to curb his activities and restore public order in the locality. It was accordingly submitted that as the impugned detention order has been passed in consonance with the statutory norms and on the basis of the materials available on record, the same cannot be faulted. 12. It was accordingly submitted that as the impugned detention order has been passed in consonance with the statutory norms and on the basis of the materials available on record, the same cannot be faulted. 12. Law is well settled that preventive detention is not to punish a person for something he has done but to prevent him from doing it. Therefore, since the detention order passed on the allegation of involvement of the detenu in a number of criminal cases without disclosing any material in the report of the Superintendent of Police or materials available before the detaining authority that there is likelihood of breach of public order, the detention order cannot be sustained. The detaining authority at the time of passing the order of detention as well as the State Government while confirming the same should take into consideration the nature of allegations and offences alleged in the grounds of detention to examine whether the same relates to ‘public order’ and the normal law cannot take care of such offences and that the acts of the detenu mentioned in the grounds of detention are prejudicial to maintenance of public order or they only relate to “law and order”. (See-Haradhan Saha v. State of West Bengal, (1975) 3 SCC 198 and Smt. Tarannum v. Union of India, AIR 1998 SC 1013 ) 13. The apex Court in Pushkar Mukherjee and others v. The State of West Bengal, AIR 1970 Supreme Court 852, while dealing with an order of preventive detention passed under Section 3(2) of the Preventive Detention Act, 1950, has observed as under: “The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection a line of demarcation must be drawn between serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals, and only in a secondary sense public interest. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act. xxx.” 14. A mere disturbance of law and order leading to disorder is thus not necessarily sufficient for action under the Preventive Detention Act but a disturbance which will affect public order comes within the scope of the Act. xxx.” 14. This Court in Sri Sadasiva Apat @ Sada v. State of Orissa and another, 80(1995) CLT 804, having referred to the decision of Apex Court in cases of Ram Manohar Lohia Vs. State of Bihar, AIR 1966 SC 740 ; Arun Ghose Vs. State of West Bengal, AIR 1970 SC 1228 ; Dipak Bose @ Haripada Vs. State of West Bengal, AIR 1972 SC 2686 and Kuso Sah Vs. State of Bihar, AIR 1974 SC 155 , formulated the factors to be borne in mind while determining whether the disturbance or disorder amounts to breach of ‘law and order’ or ‘public order’, which are:- (i) The contravention of law always affects order, but before it can be said to affect the public order, it must affect the community or the public at large; (ii) Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality; (iii) It is the degree of disturbance and its effect on the life of the community in the locality, which determine whether that disturbance amounts to breach of law and order or public order; (iv) Any Act by itself is not determinant of its own gravity. In its quality, it may not differ from another, but in potentiality it may be very different; (v) Whether a man has committed breach of law and order or has acted in a manner likely to cause disturbance of the public order is a question of degree and the extent of the reach of the act on the society; (vi) Every assaulting a victim is likely to cause horror and even panic and terror in those who are the spectators. But that does not mean that all such incidents do necessarily cause disturbance or dislocation of the community life of the localities in which they are committed. But that does not mean that all such incidents do necessarily cause disturbance or dislocation of the community life of the localities in which they are committed. (vii) It is well established that stray and unorganized crimes of theft and assault are not matters of pubic order since they do not tend to affect the even flow of public life; (viii) Whether disturbance or disorder has led to breach of law and public order is a question of fact, in which case there is no formula by which one case can be distinguished from another. 15. Coming to the detention of the petitioner under Section 3(2) of the National Security Act, 1980, on the apprehension that he may be released on bail in Kantabanji P.S. Case No.193, dt. 07.9.2016, the law is well settled that such order of detention passed on mere apprehension that the detenu, if released on bail, would again carry on with his criminal activities in the area is not sustainable in law. The Apex Court in Ramesh Yadav v. District Magistrate, Etah and others, (1985) 4 Supreme Court Cases 232, while dealing with a case of similar nature, where the detaining authority had issued an order of preventive detention on the ground that the detenu, after being released on bail, may indulge in activities which would be prejudicial to the maintenance of the public order, has observed as under: “6. On a reading of the grounds, particularly the paragraph which we have extracted above, it is clear that the order of detention was passed as the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area. If the apprehension of the detaining authority was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail an order of detention under the National Security Act should not ordinarily be passed. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to preventive detention. The impugned order, therefore, has to be quashed.” 16. We are inclined to agree with counsel for the petitioner that the order of detention in the circumstances is not sustainable and is contrary to the well settled principles indicated by this Court in series of cases relating to preventive detention. The impugned order, therefore, has to be quashed.” 16. In Rakan @ Rakesh Biswal v. State of Orissa and others; 2004 (I) OLR 561 , where the detenu was in custody at the time of passing of the order of his detention and the detaining authority had entertained an apprehension that the detenu might be released on bail and once enlarged on bail, he would again indulge in further antisocial activities prejudicial to the maintenance of public order, this Court has referred to the judgment of the Apex Court in N. Meera Rani v. Govt. of Tamil Nadu; AIR 1989 SC 2027 , wherein the Hon’ble Court has observed as under: “We may summarise and reiterate the settled principle. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention and the decision must depend on the facts of the particular case; preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily it is not needed when the detenu is already in custody; the detaining authority must show its awareness to the facts of subsisting custody of the detenu and take that factor into account while making the order; but, even so, if the detaining authority is reasonably satisfied on cogent material that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities, the detention order can be validly made even in anticipation to operate on his release. This appears to us to be the correct legal position.” Accordingly this Court had observed that the detaining authority while passing the order of detention, in a case where a detenu is already in custody, should take the following facts into consideration: (i) the detaining authority must show his awareness to the fact of subsisting custody of the detenu; and (ii) while making the order, the detaining authority is to be reasonably satisfied on cogent materials that there is likelihood of his release and in view of his antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities. 17. The Apex Court in Huidrom Konungjao Singh v. State of Manipur, (2012) 7 SCC 181 , held that three cumulative and additive nature of requirements are to be satisfied to pass the order of detention; they are: (i) The authority was fully aware of the fact that the detenu was actually in custody; (ii) There was reliable material before the said authority on the basis of which it could have reason to believe that there was real possibility of his release on bail and being released he would probably indulge in activities, which are prejudicial to public order; (iii) Necessity to prevent him for which detention order was required. 18. The Apex Court in Yummah Ongbi Lembi Liema v. State of Manipur, 2012 (I) OLR (SC) 550, referring to its earlier decision in Haradhan Saha (supra), held that only on the apprehension of the detaining authority that after being released on bail, the petitioner-detenu will indulge in similar activities, which will be prejudicial to public order, the detention order should not ordinarily be passed. Preventive detention is not meant for punishing a detenue for something he has done but to prevent him from doing it. 19. The detention order must be based on a reasonable prognosis of the future behaviour of a person based on his past conduct in light of the surrounding circumstances. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken into consideration for passing an order of detention. The live and proximate link that must exist between the past conduct of a person and the imperative need to detain him must be taken into consideration for passing an order of detention. A detention order which is founded on stale incidents, must be regarded as an order of punishment for a crime, passed without a trial, though purporting to be an order of preventive detention. The essential concept of preventive detention is that the detention of a person is not to punish him for something he has done but to prevent him from doing so. (See-G. Reddeiah v. Government of Andhra Pradesh and Anr., (2012) 2 SCC 389 ). 20. We are conscious of the legal position that while reviewing a detention order, a Court does not substitute its judgment for the decision of the executive. Nonetheless, the Court has a duty to enquire that the decision of the executive is made upon matters laid down by the statute as relevant for reaching such a decision. For what is at stake, is the personal liberty of a citizen guaranteed to him by the Constitution and of which he cannot be deprived, except for reasons laid down by the law and for a purpose sanctioned by law. The grounds on which the satisfaction is based must be such as a rational human being can consider connected with the fact in respect of which the satisfaction is to be reached. They must be relevant to the subject-matter of the inquiry and must not be extraneous to the scope and purpose of the statute. If the authority has taken into account, it may even be with the best of intention, as a relevant factor something which it could not properly take into account in deciding whether or not to exercise the power or the manner or extent to which it should be exercised, the exercise of the power would be bad. 21. In the present case, it is seen that the criminal cases cited at sl.nos.1 and 2 of the detention order relate to incidents which are stated to have taken place more than 4 years prior to the passing of the impugned order of detention. Moreover, the allegations made therein relates to offences against individuals. 21. In the present case, it is seen that the criminal cases cited at sl.nos.1 and 2 of the detention order relate to incidents which are stated to have taken place more than 4 years prior to the passing of the impugned order of detention. Moreover, the allegations made therein relates to offences against individuals. The criminal cases cited at sl.nos.3 and 4 of the detention order are also for offences alleged to have been committed against the individual informants in those cases. Moreover, omnibus allegations have been made therein, with no specific materials to attribute any overt act against the petitioner. The criminal cases detailed in sl.nos.5 to 7 of the detention order do not disclose any serious offences having been committed by the petitioner and no specific overt act has been attributed to him. 22. As regard the criminal cases cited at sl. nos.8 to 11 of the detention order, those relate to incidents which took place on the same day, i.e. 07.9.2016, which is alleged to have taken place at different point of time. All the allegations made therein are omnibus in nature and no specific overt act is attributed to the petitioner, except the fact that he along with his supporters had committed the criminal acts detailed therein. It is further seen that in some of the criminal cases, the F.I.R. has been registered against the unknown person. Though the petitioner is a public figure in active politics and had contested the Assembly Election from Kantabanji Constituency in the year 2014, it is not understood as to how the informants in those cases could not identify the petitioner as the person, who had committed the offences alleged. 23. Coming to the case cited at sl. no.12, which is under Section 110 Cr.P.C., it is seen that the same has been registered on 26.9.2016, when the petitioner was admittedly in jail custody. Criminal case cited at sl. No.13 is relating to an entry in the Station Diary dt. 29.9.2015, which relates to a ‘bundh call’ alleged to have been given by the petitioner, protesting the action of the accused persons involved in Kantabanji P.S. Case No.162 of 2015. 24. As regard the observations of the detaining authority that the petitioner’s bail application in Kantabanji P.S. Case No.193, dt. 07.9.2016 has been scheduled to for hearing in the Court of Addl. 24. As regard the observations of the detaining authority that the petitioner’s bail application in Kantabanji P.S. Case No.193, dt. 07.9.2016 has been scheduled to for hearing in the Court of Addl. Session Judge, Kantabanji and there is every possibility of his release on bail and after his release, he will again engage himself in antisocial and criminal activities in the area is without any basis. To reiterate the observations of the apex Court in the case of Ramesh Yadav (supra) that merely on the ground that an accused in detention was likely to get bail, an order of detention should not have been passed on mere apprehension. 25. Applying the principles of law as discussed above to the facts of the present case, the conclusion is irresistible that the impugned order of detention dated 19.10.2016, passed by the District Magistrate, Balangir, under Section 3(2) of the National Security Act, 1980, is not sustainable in law and the same is accordingly quashed. The petitioner be set at liberty forthwith, if his detention is not required in connection with any other case.