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2019 DIGILAW 173 (ORI)

Lallu @ Dillip Sahoo v. State of Odisha

2019-03-01

J.P.DAS, S.K.MISHRA

body2019
JUDGMENT : J.P. Das, J. The petitioner in this writ application challenges the legality of the order dated 20.03.2018 passed by the District Magistrate and Collector, Jharsuguda vide Annexure-I directing the detention of the petitioner in custody in exercise of power under Sub-section(2) of Section-3 of the National Security Act, 1980 (hereinafter referred to as 'the Act'). 2. The sequence of undisputed fact is that while the petitioner was in judicial custody in relation to some other case, he was served with detention order vide Annexure-1 on 20.03.2018 along with the grounds of detention. The detention was informed to the Government, Home Department by the concerned Collector and it was approved by the State Government on 28.03.2018. The approved order was served on the petitioner on 05.04.2018. On 09.04.2018 the petitioner made a representation challenging his detention addressed to the Hon'ble Chairman and Companion Members of the N.S.A. Advisory Board, Orissa, Cuttack through the Superintendent of Sub-Jail, Jharsuguda vide Annexure-4. He had also enclosed free copies of the representations with his said letter for sending to the Government of India and to the Government of Odisha and any other appropriate authority. On 10.04.2018 the Superintendent of Sub-Jail, Jharsuguda forwarded the copy of the said representation to the Hon'ble Chairman and Companion Members of the N.S.A Advisory Board, Odisha for favour of perusal. Thereafter on 17.04.2018 the District Maistrate, Jharsuguda served a letter on the petitioner informing about his right to represent to the Central Government. On 20.04.2018 the petitioner was personally heard by the N.S.A., Advisory Board and his detention was approved by the order of the Board dated 26.04.2018. On 08.05.2018, the detention of the petitioner was also approved by the Central Government. On 18.11.2018 i.e. almost more than six months thereafter the Superintendent of Sub-Jail, Jharsuguda forwarded a copy of the representation dated 09.04.2018 given by the petitioner to the State Government. 3. In the present application the petitioner assails his detention submitting that it was not only illegal but the actions of the detaining authority were also not according to the prescribed procedure thereby making his detention unlawful. 3. In the present application the petitioner assails his detention submitting that it was not only illegal but the actions of the detaining authority were also not according to the prescribed procedure thereby making his detention unlawful. The learned counsel for the petitioner mainly contended that the detaining authority failed to carry out their responsibility that arises under Article 22(5) of the Constitution of India by failing to forward the representation of the petitioner to the State Government as well as to the Central Government, thereby violating a statutory right available to the petitioner. It was submitted that Article 22(5) casts an important duty on the detaining authority to communicate the grounds of the detention to the detenue at the earliest to afford him an opportunity of making a representation against the detention order. It was submitted that although the petitioner submitted his representations on 09.04.2018 still those were forwarded to the concerned authorities only on 18.11.2018 and one month thereafter the State Government as well as the Central Government rejected his representation. It was further submitted on behalf of the petitioner that the grounds of detention as served on the petitioner mentioned that assessing the activities of the petitioner as reported by the Superintendent of Police, Jharsuguda and its further repercussion on the normal public life, the District Magistrate, Jharsuguda had reasons to believe that the detention of the petitioner under the provisions of the Act was essential for maintenance of public order and for prevention of disturbance of normal tempo of life in Jharsuguda town and its vicinity. It was submitted that although the observations of the District Magistrate relied upon the report submitted by the Superintendent of Police, Jharsuguda, still a copy of the said report was not supplied to the petitioner thereby violating his valuable right as per the settled principle of law. 4. Per contra, it was submitted on behalf of the State as well as the Union of India that there has been no violation of the principles of natural justice nor was there any deviation in carrying out the obligations on the part of the detaining authority so as to make the detention of the petitioner illegal or unlawful. 4. Per contra, it was submitted on behalf of the State as well as the Union of India that there has been no violation of the principles of natural justice nor was there any deviation in carrying out the obligations on the part of the detaining authority so as to make the detention of the petitioner illegal or unlawful. It was submitted that the specific grounds of detention mentioning the criminal activities of the petitioner disturbing the normal public life along with the list of twenty two criminal cases involving different serious offences were also intimated to the petitioner and he was also informed that he had liberty to represent his case to the State Government/Advisory Board under Section 9 of the Act. It was further submitted that as claimed by the petitioner on 09.04.2018, the petitioner submitted a representation addressed only to the Hon'ble Chairman and Companion Members of the N.S.A. Advisory Board and it was duly forwarded to the addressed authority by the concerned Superintendent of Sub-Jail Jharsuguda on the very next day. It was submitted by the learned counsel for the State that since the letter was addressed to the Advisory Board, it was sent to the said authority and there being no other representation of the petitioner addressed either to the State Government or to the Central Government, no latches could be attributed to the actions of the detaining authority in not forwarding the same to the State or Central Government. As regards the report of the Superintendent of Police, it was submitted that the details of the criminal activities as well as pending criminal cases were informed to the petitioner in the grounds of detention served on him on the very day of detention i.e. 20.03.2018 and hence, non-supply of the copy of the report of the Superintendent of Police to the petitioner in no way affected his information. 5. It is borne out from the record that the petitioner made a representation on 09.04.2018 addressed to the Hon'ble Chairman and Companion Members of the N.S.A. Advisory Board, Odisha, Cuttack wherein his signature was duly attested by the Superintendent of Sub-Jail, Jharsuguda and it is specifically seen therein (Annexure-4) that the petitioner had enclosed three copies of his such representation for sending to Home Affairs, Government of India, New Delhi and Secretary, Home Department (Special Section) Government of Odisha, Bhubaneswar/appropriate authority. Thus, the submission made on behalf of the State that the petitioner had not made any other representation falls to the ground. That is, more so, for the admitted position that there being no further representation made by the petitioner, the Superintendent, Sub-Jail, Jharsuguda forwarded the copy of the said representation to the Secretary of the Government, Home Department, Bhubaneswar on 18.11.2018 i.e. more than seven months after the representation was made by the petitioner. In this regard, the learned counsel for the petitioner relied upon the decision of the Hon'ble Apex Court reported in (Smt. Gracy v. State of Kerala and another, (1991) AIR SC 1090) which was also relied upon by this Court in a decision reported in (Babu @ Gobardhan Rath Vs. State of Odisha and others, (2004) 29 OCR 686). It was observed by the Hon'ble Apex Court that:- "It is undisputed that if there be only one representation by the detenu addressed to the detaining authority, the obligation arises under Art.22(5) of its consideration by the detaining authority independent of the opinion of the Advisory Board in addition to its consideration by the Advisory Board while giving its opinion.. In other words, on representation of the detenue addressed only to the Central Government and not also the Advisory Board does not dispense with the requirement of its consideration also by the Advisory Board. The question, therefore, is: Whether one of the requirement of consideration by Government is dispensed with when the detenu's representation instead of being addressed to the Government or also to the Central Government is addressed only to the Advisory Board and submitted to the Advisory Board instead of the Government ? On principle, we find it difficult to uphold the learned Solicitor General's contention, which would reduce the duty of the detaining authority from one of substance to mere form. The nature of duty imposed on the detaining authority under Art. 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not of a free agent. The nature of duty imposed on the detaining authority under Art. 22(5) in the context of the extraordinary power of preventive detention is sufficient to indicate that strict compliance is necessary to justify interference with personal liberty. It is more so since the liberty involved is of a person in detention and not of a free agent. Art. 22(5) casts an important duty on the detaining authority to communicate the grounds of detention to the detenu at the earliest to afford him the earliest opportunity of making a representation against the detention order which implied the duty to consider and decide the representation when made, as soon as possible. Art.22(5) speaks of the detenu's representation against the order, and imposes the obligation on the detaining authority. Thus, any representation of the detenue against the order of his detention has to be considered and decided by the detaining authority, the requirement of its separate consideration by the Advisory Board being an additional requirement implied by reading together Cls. (4) and (5) of Art. 22, even though express mention in Art. 22(5) is only of the detaining authority. Moreover, the order of detention is by the detaining authority and so also the order of its revocation if the representation is accepted, the Advisory Board's role being merely advisory in nature without the power to make any order itself. It is not as if there are two separate and distinct provisions of representation to two different authority viz. the detaining authority and the Advisory Board, both having independent power to act on its own. It being settled that the aforesaid dual obligation of consideration of the detenu's representation by the Advisory Board and independently by the detaining authority flows from art.22(5) when only one representation is made addressed to the detaining authority, there is no reason to hold that the detaining authority is relieved of his obligation merely because the representation is addressed to the Advisory Board instead of the detaining authority and submitted to the Advisory Board during pendency of the reference before it. It is difficult to spell out such an inference from the contents of Art. 22(5) in support of the contention of the learned Solicitor General. It is difficult to spell out such an inference from the contents of Art. 22(5) in support of the contention of the learned Solicitor General. The content of Art.22(5) as well as the nature of duty imposed thereby on the detaining authority support the view that so long as there is a representation made by the detenu against the order of detention, the aforesaid dual obligation under Art.22(5) arises irrespective of the fact whether the representation is addressed to the detaining authority or to the Advisory Board or to both. The mode of address is only a matter of form, which cannot whittle down the requirement of the constitutional mandate in Art. 22(5) enacted as one of the safeguard provided to the detenu in case of preventive detention." In view of the aforesaid position of law and on the undisputed facts that the representation submitted by the petitioner on 09.04.2018 was forwarded to the State Government by the Jail Authority on 18.11.2018, it is apparent that the detaining authority has failed in complying the constitutional mandate while performing their duties and hence, the detention of the petitioner is definitely unsustainable. It is also not disputed that the reports submitted by the Superintendent of Police, Jharsuguda was relied upon by the concerned District Magistrate in assessing the criminal activities of the petitioner but the copy of the said order was not served on the petitioner. In this respect, the learned counsel for the petitioner relied on the decision of this Court reported in (Sailendra Kumar Jora v. District Magistrate and Two Ors., (2007) 36 OCR 833). It was observed therein that whatever materials have been considered by the detaining authority in passing the order of the detention should be made available to the petitioner to enable him to make a proper representation against the grounds of detention. It was further observed that even then the grounds of detention virtually contains all the materials which were there in the report of the Superintendent of Police, even though the fact remains that the report of the Superintendent of Police has not been supplied to the detenue. Relying upon a decision of the Hon'ble Apex Court reported in (Smt. Icchu Devi Choraria V. Union of India and Ors., (1980) AIR SC 1983). Relying upon a decision of the Hon'ble Apex Court reported in (Smt. Icchu Devi Choraria V. Union of India and Ors., (1980) AIR SC 1983). It was observed that: "This is an area where the Court has been most strict and scrupulous in ensuring observance with the requirements of the law, and even where a requirement of the law is breached in the slightest measure, the Court has not hesitated to strike down the order of detention." 6. In view of the aforesaid facts and the position of law, we are of the considered view that there were fatal lapses on the part of the detaining authority, and consequentially therefore, the order of detention is liable to be quashed. 7. Accordingly, we allow the petition quashing the order dated 20.03.2018 passed by the District Magistrate and Collector, Jharsuguda vide Annexure-1 and direct that the petitioner be released forthwith if his detention in custody, is not required in connection with any other case.