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2018 DIGILAW 845 (ORI)

Nakula Mahakud v. State of Orissa

2018-12-14

A.K.MISHRA, S.K.MISHRA

body2018
JUDGMENT Dr. A.K. MISHRA, J. - The order dated 26.12.2017 of the Government of Odisha Home (Special Section) Department under Section 3 (4) of the National Security Act, 1980 approving the detention order dated 17.12.2017 of the Commissioner of Police, Bhubaneswar-Cuttack in respect of the detenu, namely, Nakula Mahakud is under challenge in this writ petition under Article 226 of the Constitution of India. 2. The Commissioner of Police, Bhubaneswar-Cuttack on being subjectively satisfied that detenu who was already in jail in Khandagir P.S. Case No.520 dt. 17.11.2017 was frequently unleashing reign of terror and thereby acting prejudicial to the maintenance of public order in the areas of Bhubaneswar urban district, had invoked Section 3 (3) of the National Security Act and directed to detain him in the Special Jail, Jharpada until further orders. For such subjective satisfaction, the Commissioner of Police had taken into consideration of eight criminal cases pending against the detenu and use of lethal weapons, fire arms and creation of panic at the point of gun to collect Dada Bati. 3. On 26.12.2017 the order of detention was approved by the Home (Special Section) Department, Government Odisha vide Annexure-1. The said order was served upon the petitioner on 28.12.2017. On 4.1.2018 the petitioner filed his representation to the Home (Special Section) Department, Government of Odisha through Superintendent, Special Jail Jharpada, Bhubaneswar. On 9.1.2018 the said representation was received in the Home Department, Orissa. The State Government rejected the representation of the detenu on 25.1.2018 and it was served upon him 28.1.2018. 4. On 23.1.2018 the Joint Secretary, Internal Security (II) forwarded the representation of detenu to the Union, Home Secretary. On 24.1.2018 the Central Government rejected the representation of the detenu, but it was intimated to the Superintendent of Special Jail Jharpada on 29.1.2018 and in turn it was served upon the detenu on 31.1.2018. The opinion of the NSA Advisory Board dated 3.2.2018 was obtained. The order of confirmation of State Government was issued on 7.2.2018 but was served upon the petitioner on 13.2.2018. It is the further case of the petitioner that his liberty was curtailed by inordinate delay of the authority in forwarding his representation and serving rejection order upon him. Even though he was involved in eight numbers of cases, in no case his act was prejudicial to the public order. It is the further case of the petitioner that his liberty was curtailed by inordinate delay of the authority in forwarding his representation and serving rejection order upon him. Even though he was involved in eight numbers of cases, in no case his act was prejudicial to the public order. The difference between law and order and public order was not kept in view. 5. As the detention was illegal, this petition for Habeas corpus was filed on 19.3.2018 to quash the impugned order dated 26.12.2017, issued and confirmed by the opposite party No.1, State of Odisha. 6. The Additional Secretary to Government of Orissa filed affidavit on behalf of opposite party No.1 denying allegation of violation of any provision of law for approving the order of detention of the petitioner. It is stated that the State Government had approved the detention order on 26.12.2017 which was within 12 days of the detention as stipulated under Section 3 (4) of the National Security Act. The ground of detention was nothing but threat to public order and on 28.12.2017 the order of detention was served upon the petitioner. The relevant portion of the said counter affidavit filed by opposite party No.1 thus :- “Para-11. That the representation of the detenu dated 4.1.2018 was received by the State Government on 9.1.2018 through the Superintendent, Special Jail, Bhubaneswar. The Commissioner of Police, Bhubaneswar-Cuttack was requested to furnish the parawise comments on the representation of the detenu, which was sent to the Commissioner of Police, Bhubaneswar on 11.1.2018. On the same day another representation dated 10.01.2018 was received by the State Govt. and parawise comments were provided by the Commissioner of Police, Bhubaneswar-Cuttack to that very day to the State Govt. without any delay. 12. That both the representations of detenu dated 4.1.2018 and 10.1.2018 were duly looked into by the Commissioner of Police, Bhubaneswar-Cuttack during submission of parawise comments and as per Section 3 (5) of the National Security Act, 1980 the order of detention was duly sent to the Central Govt. as per requirement of Section 3 (5) of the National Security Act, 1980. 13. That the representation and parawise comments of the Commissioner of Police, Bhubaneswar-Cuttack was also forwarded to the Ministry of Home Affairs, Govt. of India on 18.01.2018. 14. That both the representations of the detenu dated 4.1.2018 and 10.1.2018 were duly considered by the State Govt. as per requirement of Section 3 (5) of the National Security Act, 1980. 13. That the representation and parawise comments of the Commissioner of Police, Bhubaneswar-Cuttack was also forwarded to the Ministry of Home Affairs, Govt. of India on 18.01.2018. 14. That both the representations of the detenu dated 4.1.2018 and 10.1.2018 were duly considered by the State Govt. And the same was rejected ultimately on 25.1.2018 and the same was served on the detenu in the Jail premises on 28.1.2018 completing all formalities including translated copy in Oriya vernacular. It would be appropriate to state here that during consideration, the Under Secretary after getting the parawise comments from the Commissioner of Police, Bhubaneswar-Cuttack looked into the file on 12.1.12018 which was also looked into by the Additional Chief Secretary and after due administrative considerations, the representation was placed for submission to the Govt. for kind orders on 19.1.2018.” 7. The Additional Secretary to Government, Home Department has filed additional counter affidavit. 8. On behalf of O.P.2-Union of India, Under Secretary, Ministry of Home Affairs, Government of India, New Delhi has filed counter affidavit stating that the copies of the representation of detenu dated 4.1.2018 and 10.1.2018 along with parawise comment were forwarded by the State Government on 12.01.2018. The same was received on 19.1.2018. It is stated in paragraph-4 of the counter of affidavit filed by opposite party No.2 that :- “Para-4. That with regard to para no.5,7, 10, 14, 17 & 22 of the petition, it is humbly submitted that, the copies of representations dated 04.01.2018 and 10.01.2018 from the petitioner along with parawise comments of the detaining authority were forwarded by the Additional Secretary, Home (Special Section) Department, Government of Odisha vide letter No.101/C dated 12.01.2018. The same was received in the section concerned of Ministry of Home Affairs on 19.01.2018. The representations of the detenu along with parawise comments of the detaining authority were processed for consideration of the Union Home Secretary, who has been delegated powers vide Order No.A-32013/24/2017-Ad.l dated 29.09.2017 by the Union Home Minister to decide such cases ( a copy of the delegation of powers is enclosed as Annexure No.A-2) on 19.01.2018. The file reached the Under Secretary (NSA) on 22.01.2018. The Under Secretary (NSA) with his comments forwarded the same to the Deputy Legal Advisor on 22.01.2018. The file reached the Under Secretary (NSA) on 22.01.2018. The Under Secretary (NSA) with his comments forwarded the same to the Deputy Legal Advisor on 22.01.2018. The Deputy Legal Advisor forwarded the same to the Joint Secretary (Internal Security-II) with his comments forwarded the same to the Union Home Secretary on 23.01.2018. During the intervening period 20th and 21st January, 2018 were holidays being Saturday and Sunday.” 9. The ground of detention is assailed on the following two points: (i) That the representation of the detenu dated 4.1.2018 submitted through Superintendent, Special Jail, Jharpada, Bhubaneswar having been received in the Home Department, Odisha on 9.1.2018, 5 days delay has been caused without any explanation. The representation of the detenu dated 10.1.2018 was rejected by the State Government on 25.1.2018 for which 14 days delay was caused and the said rejection order was served on detenu on 28.1.2018 without any acceptable explanation. It is also urged on this ground of delay that the representation dated 4.1.2018 was forwarded by the Additional Secretary, Home Department on 12.1.2018, but it was received on 19.1.2018 and thereby 7 days was caused in forwarding the representation to the Union Government of India. The Union Government rejected the representation of the petitioner on 24.1.2018 but it was served on the petitioner on 31.1.2018 and thereby 7 days was caused. The above unexplained delays are sufficient to show that the detention of petitioner is illegal (ii) Secondly, the involvement of the detenu in eight number of cases which he is not convicted, cannot be the sole basis for subjective satisfaction to the effect that detenu was acting to create panic and thereby maintenance of public order was affected. The subjective satisfaction in this regard is not justified as detenu was not indulged in any objectionable activity affecting the society as a whole. 10. Learned Counsel for the petitioner has relied upon the following decisions in support of his above contention :- 1. Hetchin Haokip V. State of Manipur and Others: AIR 2018 SC 3419 . 2, Ram Dhondu Borade Vs. V.K. Saraf: AIR 1989 SC 1861 . 3. Smt. Pebam Ningol Mikoi Devi V. State of Manipur and Ors. (2010) 47 OCR (SC) 694) 4. Kalia @ Alok Kumar Das V. District Magistrate, Dhenkanal & Two Ors. (2017) 38 OCR 386. 5. Md.Raju @ Md. Azim V. State of Odisha and others (2012) 61 OCR 1027. 6. V.K. Saraf: AIR 1989 SC 1861 . 3. Smt. Pebam Ningol Mikoi Devi V. State of Manipur and Ors. (2010) 47 OCR (SC) 694) 4. Kalia @ Alok Kumar Das V. District Magistrate, Dhenkanal & Two Ors. (2017) 38 OCR 386. 5. Md.Raju @ Md. Azim V. State of Odisha and others (2012) 61 OCR 1027. 6. Bikash Munda V. State of Orissa & others (2014) 58 OCR 582) 7. Shanina Begum V. State of Orissa and others (2001) 20 OCR 347). 8. Sasanka Dash V. Collector and District Magistrate, Kalahandi and others (1999) 17 OCR 233) 9. K.Alley Vrs. State of Orissa and others (2014) (Supp-II) OLR 1083) 10. Animesh Ghosh Vs. The State of Orissa and others (2002) 23 OCR 491) 11. Karan @ Pradeep Sagar V.State of Orissa (1997) 13 OCR 286. 12. Sumati Das vs.State of Orissa (1998) 15 OCR 149 (Para-16) 13. Ashok Kumar Yadav vs. State of Odisha (2005) 31 OCR 343. 11. Learned Additional Government Advocate repelled the above contention that as per the requirement of law, the file was processed and within prescribed period not only the petitioner was informed about the ground of detention but also his representations to both the State Government and Central Government were considered. It is further submitted that whatever delay was caused it was due to public holidays, i.e. 22.1.2018 and 23.01.2018 as Basanta Panchami and Netaji Subhash Chandra Bose Jayanti while 26.1.2018 was the Republic day and following days i.e. 27.01.2018 and 28.01.2018 were Saturday and Sunday. Relying upon a decision reported in (1993) 3 SCC 384 : Kamlabai Vrs. Commissioner of Police, Nagpur & others, it is argued that “the delay itself is not a ground which proves to be fatal, if there is an explanation.” Learned Additional Government has also relied upon the following decisions – Kanu Biswas vrs. State of West Bengal (1972) 3 SCC 831 , Union of India and others vrs. Laishram Lincola Singh @ NICOLAI (2008) 5 SCC 490 , Union of India and another Vrs. Chaya Ghoshal (SMT) and Another (2005) 10 SCC 97 . 12. Learned Assistant Solicitor General for Union of India-opposite party no.2 vehemently opposed the ground of delay submission, relying upon the affidavit filed by the Under Secretary, Ministry of Home Affairs, Government of India. Laishram Lincola Singh @ NICOLAI (2008) 5 SCC 490 , Union of India and another Vrs. Chaya Ghoshal (SMT) and Another (2005) 10 SCC 97 . 12. Learned Assistant Solicitor General for Union of India-opposite party no.2 vehemently opposed the ground of delay submission, relying upon the affidavit filed by the Under Secretary, Ministry of Home Affairs, Government of India. He has also advanced the explanation of holidays, i.e. 20.1.2018 and 21.1.2018 as well as 26.1.2018 , 27.1.2018 and 28.1.2018 to negate the ground of delay. 13. Having heard learned Counsel for the petitioner, learned Additional Government Advocate for the State-opposite party No.1 and learned Assistant Solicitor General for opposite party No.2, we are of the opinion that three judges Bench decision of the Supreme Court, Hetchin Haokip v. State of Manipur and others (AIR) 2018 SC 3419 is helpful singularly to understand the meaning of “forthwith” occurring in Section 3 (4) of the National Security Act, 1980. In that decision their Lordships have stated that – “16. The expression “forthwith” under Section 3 (4) must be interpreted to mean within reasonable time and without any undue delay. This would not mean that the detaining authority has a period of twelve days to submit the report (with grounds) to the State Government from the date of detention. The detaining authority must furnish the report at the earliest possible. Any delay between the date of detention and the date of submitting the report to the State Government, must be due to unavoidable circumstances beyond the control of the authority and not because of administrative delay. 14. In Rama Dhondu Borada vs. V.K. Saraf (supra) their Lordships while taking into consideration of holidays had not accepted the delay for not communicating the decision on the working days intervening the same vide para-10 of the decision. In Chaya Ghosal case (supra) vide para-13, their Lordships have considered Article 22 (5) of the Constitution of India to state that “it also impetrates the authority to whom the representation is addressed to deal with the same with utmost expedition.” 15. Keeping in view the above laws, the facts of the case at hand reveal that the delay in forwarding the representation of the detenu dated 4.1.2018 to the Central Government on 12.1.2018 which was received on 19.1.2018 is not properly explained. Keeping in view the above laws, the facts of the case at hand reveal that the delay in forwarding the representation of the detenu dated 4.1.2018 to the Central Government on 12.1.2018 which was received on 19.1.2018 is not properly explained. It is also not understood as to why the representation to the State Government received by the Superintendent, Special Jail, Jharpada on 4.1.2018 was sent to the Home Department, Odisha on 9.1.2018. Similarly it is not explained as to why the rejection order of the State Government dated 25.1.2018 which was served on the detenu on 28.1.2018 while the detenu was inside the jail. The holidays like Saturday, Sunday and Republic day cannot be considered to intercept liberty of a detenu for communicating the order. 16. These delays are attempted to be explained, but not sufficient to come under the category of short delay. It may be stated here that detenu was in Jharpada Jail which situates in the heart of the capital at Bhubaneswar. To say the least, the delay caused in forwarding the representation to the Union of India and serving the rejection order on the detenu could have been avoided. It was not beyond the control of the authority. It is nothing but administrative laxity which has failed to honour the liberty of the detenu in accordance with law. On this score of delay, the detention of the petitioner is found illegal. 17. As we are going to set aside the detention order on the ground of un-explained inordinate delay, it is felt just not to consider the second point concerning subjective satisfaction on maintenance of public order. 18. In the wake of above analysis holding the illegality of detention of the petitioner for unexplained inordinate delay in processing the representation and communicating the order, the writ petition is to be allowed. 19. In the result the detention order dated 17.12.2017 and the order of approval dated 26.12.2017 passed against the petitioner are quashed. 20. The detenu be set at liberty forthwith unless his detention is required in connection with any other case. Copy of the judgment be sent to the Government immediately. 21. The WPCRL is allowed. There shall be no order as to costs. S.K. MISHRA, J. I agree. WPCRL allowed.