Raka @ Akash @ Rakesh Behera @ vs Union Of India & Others
2021 Latest Caselaw 6315 Ori

              IN THE HIGH COURT OF ORISSA AT CUTTACK

                            W.P. (CRL) No.20 of 2021

            Raka @ Akash @ Rakesh Behera @               ......            Petitioner
            Bhoi
                                                      Mr. K.C. Tripathy, Advocate
                                         -versus-
            Union of India & Others                      ...   Opposite Parties
                                            Mr. P.K. Parhi, Asst. Solicitor General
                           along with Mr. Satyabrata Panda, Central Govt. Counsel


                      CORAM:
                      THE CHIEF JUSTICE
                      JUSTICE K.R. MOHAPATRA


                                       ORDER

Order No.                             11.06.2021
            Dr. S. Muralidhar, CJ.

08. 1. This matter is taken up by video conferencing mode.

2. The Petitioner challenges the order dated 3rd July, 2020 issued under Section 3 (2) of the National Security Act ('NSA') by the Commissionerate Police, Bhubaneswar-Cuttack directing that the Petitioner Raka @ Akash @ Rakesh Behera @ Bhoi be detained in the Special Jail at Bhubaneswar until further orders.

3. The present petition was filed on 10th February, 2021. Pleadings have since been completed. This Court has heard Mr. R.K. Mohapatra, learned counsel who has also filed a written note of arguments on behalf of Mr. K.C. Tripathy, learned counsel for the Petitioner, Mr. P.K. Parhi, learned Assistant

// 2 //

Solicitor General along with Mr. Satyabrata Panda, learned Central Govt. Counsel appeared on behalf of Opposite Party No.1 - Union of India and Mr. Janmejaya Katikia, learned Govt. Counsel for the State appeared for Opposite Party Nos.2, 3, 4 and 5.

4. From the counter affidavit filed by the Commissioner of Police, Bhubaneswar-Cuttack (Opposite Party No.5), it is seen that the said detention order was served on the Petitioner on 4th July, 2020 through the Superintendent of Special Jail, Bhubaneswar. This was because the Petitioner was already in judicial custody in other criminal cases, which will be referred to later. It was opined by police that the release of the Petitioner would affect the public law and order.

5. The basis for the detention order was a detailed proposal forwarded by the Inspector-in-charge of Airfield P.S., Bhubaneswar to the Commissioner of Police on 3rd July, 2020, (which constituted the grounds of detention) in which the Petitioner was described as a hardcore anti-social involved in serious criminal cases like attempt to murder, extortion, robbery, etc. It was stated that the Petitioner is a threat to the innocent public and to society and is involved in numerous cases of damage to public/private properties and extortion. It was pointed out that members of the public were scared to report to the police about his acts of intimidation, disruption of public peace and tranquility which could not be prevented by the normal legal process.

// 3 //

6. Referring to a recent incident, the proposal dated 3rd July 2020 recounted an incident of 4th June 2020 in which the Petitioner and his gang members created terror at a construction work site at "The Prestige Apartment" at Balabhadrapur under Airfield P.S., attacked the labourers with sharp cutting weapons and criminally threatened to kill them. When the gang did not find the owner, the Petitioner (who was the leader of the gang) took captive the site supervisor and threatened him with dire consequences if he did not pay "Dada Bati" to him. An ultimatum was given to pay the extortion amount. The labourers were assaulted and warned to leave the work site immediately.

7. The proposal noted that this is not the first instance of such disruption of public peace and tranquility by the Petitioner. The proposal listed as many as 24 past criminal cases registered in the Airfield P.S. against the Petitioner under various provisions of the Indian Penal Code (IPC), like Sections 294, 341, 323, 379, 427, 506, 507 read with 34 and Sections 25 and 27 of the Arms Act. It was stated the registration of the said cases had no deterrent effect on the Petitioner, who had developed an image of "Dada" spreading his network in the Airfield P.S. areas and other parts of Bhubaneswar including the localities of Balabhadrapur, Botanda, Sundarpada, Pokhariput, Brahmakunda, Khetrapal and other areas of Bhubaneswar UPD. In particular, it was noted that, in the Airfield P.S. non-F.I.R. No.41 under Section 110, Cr.P.C. the Petitioner was in judicial custody since 16th June, 2020, and in the meantime he had

// 4 //

applied for bail. It was noted that if the Petitioner was enlarged on bail, he would again disrupt law and order.

8. It is in the above background that the impugned order of detention under Section 3 (2) of the NSA came to be issued against the Petitioner on 3rd July, 2020. The Secretary, NSA Advisory Board issued a notice on 17th July, 2020, informing the Commissioner of Police, Bhubaneswar-Cuttack that the case D.C. No.16 of 2020 relating to the detention of the Petitioner under the NSA would be heard on 28th July, 2020. On 31st July, 2020 the Petitioner submitted a representation against the detention order.

9. In the counter affidavit filed by the Home Department, State of Odisha, it is stated that the said representation of the Petitioner, along with para-wise comments of the detaining authority was on 7th August, 2020 forwarded to the Ministry of Home Affairs (MHA). On 17th November, 2020 a wireless message was received from the MHA by the Police Commissionerate as well as the Superintendent of Jail, Bhubaneswar and (through that latter) the Petitioner to the effect that the Petitioner's representation had not been acceded to.

10. In the meanwhile the NSA Advisory Board on 28th August, 2020 confirmed the detention order, and in turn an order was issued on 28th August, 2020 by the State Government, confirming the said detention order.

// 5 //

11. A letter dated 18th September, 2020 was issued by the Commissioner of Police to the State Govt. seeking extension of the detention period of the Petitioner, which was approved by the State Govt. on 24th September, 2020. The detention was extended from 3 months to 6 months. Another similar request was received on 22nd December, 2020 and the State Govt. conveyed on 24th December, 2020 its approval of the extension of the Petitioner's detention from 6 months to 9 months. On 22nd March, 2021 again the State Government approved for further extension of detention from 9 months to 12 months.

12. Mr. R.K. Mohapatra, learned counsel for the Petitioner submitted that, although there were 24 cases against the Petitioner, he has either been acquitted or has been released on bail in them, and it was only with a view to defeating the bail order in the last of such cases that the impugned order of detention was passed. It is submitted that the grounds are all relating to ordinary law and order issues that did not affect the public order; that the grounds of detention were not proximate, were vague and not supported by sufficient cause.

13. During the course of argument, Mr. R.K. Mohapatra, learned counsel for the Petitioner further submitted that there was undue delay of over three months in the Petitioner's representation being considered and rejected. Incidentally, this was not a ground urged in the writ petition.

// 6 //

14. Mr. P.K. Parhi, learned Asst. Solicitor General of India and Mr. J. Katikia, learned Govt. Counsel for the State took the Court through their respective counter affidavits and submitted that no case is made out for interference with the detention order.

15. To begin with the broad principles concerning the scope of judicial review of an order of preventive detention may be recapitulated. It was explained by the Supreme Court in Naresh Kumar Goyal v. Union of India and others (2005) 8 SCC 276 that an order of preventive detention was neither "curative" nor "reformative or punitive", but "a preventive action". This was "....with the avowed object of which being to prevent the antisocial and subversive elements from imperiling the welfare of the country or the security of the nation or from disturbing the public tranquility or from indulging in smuggling activities or from engaging in illicit traffic in narcotic drugs and psychotropic substances, etc. Preventive detention is devised to afford protection to society. The authorities on the subject have consistently taken the view that preventive detention is devised to afford protection to society. The object is not to punish a man for having done something but to intercept before he does it, and to prevent him from doing so.........".

16. In State of Maharashtra v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613, the Supreme Court delineated the limits of judicial review of executive action in the area of preventive detention and held as under:

"36. Liberty of an individual has to be subordinated, within reasonable bounds, to the good of the people. The framers of the Constitution were conscious of the practical need of preventive detention with a

// 7 //

view to striking a just and delicate balance between need and necessity to preserve individual liberty and personal freedom on the one hand and security and safety of the country and interest of the society on the other hand. Security of State, maintenance of public order and services essential to the community, prevention of smuggling and blackmarketing activities, etc. demand effective safeguards in the larger interests of sustenance of a peaceful democratic way of life.

37. In considering and interpreting preventive detention laws, courts ought to show greatest concern and solitude in upholding and safeguarding the fundamental right of liberty of the citizen, however, without forgetting the historical background in which the necessity--an unhappy necessity--was felt by the makers of the Constitution in incorporating provisions of preventive detention in the Constitution itself. While no doubt it is the duty of the court to safeguard against any encroachment on the life and liberty of individuals, at the same time the authorities who have the responsibility to discharge the functions vested in them under the law of the country should not be impeded or interfered with without justification (vide A.K. Roy v. Union of India (1982) 1 SCC 271, Bhut Nath Mete v. State of W.B. (1974) 1 SCC 645, State of W.B. v. Ashok Dey (1972) 1 SCC 199 and ADM v. Shivakant Shukla (1976) 2 SCC

521)."

17. The objections to the impugned detention order in the present case are on both procedural and substantive grounds. As regards the procedure, there are two contentions urged. One is that the grounds for detention are not 'proximate' to the alleged instances of breach of law and order and that the detention order is therefore bad in law. However, the Court finds that the

// 8 //

undisputed facts are that on 4th June 2020, just within a month of the passing of the detention order on 3rd July 2020, the Petitioner was involved in a serious incident of breach of law and order, causing threat to public peace and tranquility. Further this happened when the Petitioner was in bail in other cases which were registered in the recent past, prior to the incident in question. Consequently, the Court is not impressed with the argument that the detention order was not 'proximate' to the incident of breach of peace and public order.

18. The second procedural ground is that there was undue delay in the consideration and rejection of the Petitioner's representation against his detention. It must be recalled that in fact there is no averment in the petition itself about any delay in consideration of the Petitioner's representation. This was only raised during oral arguments. Consequently, there was no occasion for the Opposite Parties to offer an explanation for the delay.

19. The legal position in regard to the delay in disposal of representation being fatal to the detention order may be noticed at this stage. In Mst. L.M. S. Ummu Saleema v. Shri B.B. Gujaral (1981) 3 SCC 317, the Supreme Court explained that there cannot be any fixed time and the delay, if any, in disposal of the representation is to be considered vis-a-vis any prejudice that may be caused to the detenue. It was held:

"Another submission of the learned counsel was that there was considerable delay in the

// 9 //

disposal of the representation by the detaining authority and this was sufficient to vitiate the detention. The learned counsel submitted that the detaining authority was under an obligation to adequately explain each day's delay and our attention was invited to the decisions in Pritam Nath Hoon v. Union of India AIR 1981 SC 92 and in Shanker Raju Shetty v. Union of India (W. P. 640 of 1980 decided on 26.6.80). We do not doubt that the representation made by the detenu has to be considered by the detaining authority with the utmost expedition but as observed by one of us in Frances Coralie Mullin v. W.C. Khambra (1980) 2 SCC 275 'the time imperative can never be absolute or obsessive.' The occasional observations made by this Court that each day's delay in dealing with the representation must be adequately explained are meant to emphasise the expedition with which the representation must be considered and not that it is a magical formula, the slightest breach of which must result in the release of the detenu. Law deals with the facts of life. In law, as in life, there are no invariable absolutes. Neither life nor law can be reduced to mere but despotic formulae."

20. In the instant case, the Court finds from the counter affidavits filed that the time taken to dispose of the Petitioner's representation could not be characterized as 'unduly delay'. In para-4 of the counter affidavit of the Central Government it is stated that the copy of the representation dated 31st July 2020 of the Petitioner along with para-wise comments of the detaining authority was duly considered by the Home Ministry. After carefully going through the materials on record including the order of detention, ground for detention, and thereafter of the comments of the detaining authority and the independent report

// 10 //

of the central agency, the order rejecting the representation was communicated on 17th November 2020.

21. Without there being any averment in the writ petition that there was 'undue delay' in the time taken for disposal of the Petitioner's representation, there was no occasion for the Opposite Parties to explain the circumstances under which the above delay occurred. Consequently, there is nothing before the Court for it to conclude that the said delay is 'undue' and therefore fatal to the detention order. Further, as explained by the Supreme Court, it is not in every case will a delay in disposal of the representation be considered 'undue' and fatal to the detention order. There is indeed no fixed formula in this regard. With there being no factual foundation laid, this Court is unable to conclude that the delay in this case in the disposal of the representation is fatal to the detention order.

22. Turning now to the substantive grounds of challenge, it is sought to be contended that the grounds do not make out a case for breach of public order and that the incidents spoken of are ordinary law and order situations that could be met by the ordinary criminal law. In other words, the submission is that there was no occasion for the Opposite Parties to invoke Section 3 (2) of the NSA. It is contended by the Petitioner that it is only to ensure that the Petitioner does not emerge from judicial custody under a bail order, that the order of preventive detention has been passed and it is, therefore, a colourable exercise of power.

// 11 //

23. In the present case the main ground for detention is the likelihood of the Petitioner emerging out of jail after being granted bail and thereby again disturbing the peace and tranquility of the areas in which he is operating.

24. The question whether an order of preventive detention can be passed against a person who is already in custody has been addressed in a number of judgments, among the earliest of which is Rameshwar Shaw v. District Magistrate, Burdwan [1964] 4 SCR 921. Here, while setting aside an order of detention passed under the powers under Section 3 (1) of the Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substances Act, 1988, the Constitution Bench of the Supreme Court answered the above question in the affirmative and observed:

"As an abstract proposition of law, there may not be any doubt that s. 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail; but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail. Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years. It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him. In dealing with this question, again the considerations of proximity of time will not be irrelevant. On the other hand, if a person who is undergoing imprisonment, for a very short period,

// 12 //

say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether the detention of the said person would be necessary after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a valid order of detention a few days before the person is likely to be released."

25. In Masood Alam v. Union of India AIR 1973 SC 897 the Supreme Court explained the nature and purpose of an order of preventive detention. It was observed:

"The jurisdiction of preventive detention sometimes described as jurisdiction of suspicion depends on subjective satisfaction of the detaining authority. It is designed to prevent the mischief from being committed by depriving its suspected author of the necessary facility for carrying out his nefarious purpose. This Jurisdiction is thus essentially different from that of judicial trials for the commission of offences and also from preventive security proceedings in criminal courts. both of which proceed on objective consideration of the necessary facts for judicial determination by courts of law and justice functioning according to the prescribed procedure. Merely because such jurisdiction of courts can also be validly invoked does not by itself exclude the jurisdiction of preventive detention under the Act."

26. In the aforementioned decision, the Supreme Court was considering the issue regarding passing of a detention order against a person in custody and in that context observed:

"The real hurdle in making an order of detention against a person already in custody is based on the view that is futile to keep a person in dual custody

// 13 //

under two different orders but this objection cannot hold good if the earlier custody is without doubt likely to cease very soon and the detention order is made merely with the object of rendering it operative when the previous custody is about to cease. It has also been pointed out that the grounds relate to a period more than a year prior to the order of detention. This according to the submission also renders the order mala fide. In our opinion, this contention is without merit. It has to be borne, in mind that it is always the past conduct, activities or the antecedent history of a person which the detaining authority takes into account in making a detention order. No doubt the past conduct, activities or antecedent history should ordinarily be proximate, in point of time and should have a rational connection with the conclusion that the detention of the person is necessary but it is for the detaining authority who has to arrive at a subjective satisfaction in considering the past activities and coming to his conclusion if on the basis of those activities he is satisfied that the activities of the person concerned are such that he is likely to indulge in prejudicial activities necessitating his detention."

27. In Smt. Sashi Aggarwal v. State of U. P. (1988) 1 SCC 436, the Supreme Court was dealing with the validity of an order of detention passed under Section 3 (1) NSA Court against a person already in custody essentially on the ground that if released he would continue to indulge in the illegal activities for which he had been arrested and charged. The Court observed:

"Section 3 of the National Security Act does not preclude the authority from making an order of detention against a person while he is in custody or in jail, but the relevant facts in connection with the making of the order would make all the difference in every case. The validity of the order of detention has to be judged in every individual case on its own

// 14 //

facts. There must be material apparently disclosed to the detaining authority in each case that the person against whom an order of preventive detention is being made is already under custody and yet for compelling reasons, his preventive detention is necessary."

28. Shortly thereafter, the said issue was re-visited in Vijay Kumar v. Union of India AIR 1988 SC 934 where the Supreme Court was dealing with a challenge to a detention order where the principal ground was the likelihood of the detenue engaging in the prejudicial activity after release on bail. The Supreme Court referred to the earlier case law and the above decision in Smt. Sashi Agarwal (supra) and held as under:

"On a conspectus of the above decisions, we are of the view that when a detenu is already under detention for an offence, whether bailable or non- bailable, the detaining authority will take into his consideration the fact of detention of the detenu and, as laid down in Sashi Aggarwal's case (supra), there must be compelling reasons to justify his preventive detention in spite of the fact that he is already under detention on a charge of a criminal offence. There must be material for such compelling reasons and the material or compelling reasons must appear from the grounds of detention that will be communicated to the detenu. In other words, two facts must appear from the grounds of detention, namely, (1) awareness of the detaining authority of the fact that the detenu is already in detention and (2) there must be compelling reasons justifying such detention, despite the fact that the detenu is already under detention."

29. In Kamarunnisa v. Union of India (1991) 1 SCC 128 the Supreme Court observed:

// 15 //

"13. From the catena of decisions referred to above it seems clear to us that even in the case of a person in custody a detention order can validly be passed (1) if the authority passing the order is aware of the fact that he is actually in custody; (2) if he has reason to believe on the basis of reliable material placed before him (a) that there is a real possibility of his being released on bail, and (b) that on being so released he would in all probability indulge in prejudicial activity and (3) if it is felt essential to detain him to prevent him from so doing. If the authority passes an order after recording his satisfaction in this behalf, such an order cannot be struck down on the ground that the proper course for the authority was to oppose the bail and if bail is granted notwithstanding such opposition, to question it before a higher court. What this Court stated in the case of Ramesh Yadav (1985) 4 SCC 232 was that ordinarily a detention order should not be passed merely to pre-empt or circumvent enlargement on bail in cases which are essentially criminal in nature and can be dealt with under the ordinary law. It seems to us well settled that even in a case where a person is in custody, if the facts and circumstances of the case so demand, resort can be had to the law of preventive detention."

30. This was reiterated in Union of India v. Paul Manickam (2003) 8 SCC 342 where the Supreme Court held:

"14. ........ Where detention orders are passed in relation to persons who are already in jail under some other laws, the detaining authorities should apply their mind and show their awareness in this regard in the grounds of detention, the chances of release of such persons on bail. The necessity of keeping such persons in detention under the preventive detention laws has to be clearly indicated. Subsisting custody of the detenu by itself does not invalidate an order of his preventive detention, and the decision in this regard must depend on the facts

// 16 //

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 or economic stability etc. ordinarily, it is not needed when the detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied with 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, the detention order can be validly made.

31. The principles enunciated in the above decisions were reiterated recently by the Supreme Court in Union of India v. Dimple Happy Dhakad AIR 2019 SC 3428.

32. Turning to the case on hand, it is seen that the grounds of detention are elaborate. They list out the details of each of the 24 criminal cases pending against the Petitioner. What is striking is that these cases are all registered in one P.S. viz., the Airfield P.S. in Bhubaneswar. The cases are also invariably for similar type of offences viz., Sections 294, 341, 323, 379, 427, 506, 507 read with 34 and Sections 25 and 27 of the Arms Act. The earliest of the 24 cases was registered on 31st July 2013 and it is seen in each of the years thereafter till 2020 there have been multiple cases registered against him for similar types of criminal charges, i.e. attempt to murder, criminal intimidation, dacoity, robbery, illegal use of fire arms and so on. There is a

// 17 //

pattern to the crimes that unmistakably emerges on a collective reading of the grounds of detention. The materials available support the case of the State that the Petitioner and his associates are involved in numerous cases of extortion, violence, disturbance of public peace and tranquility. The last of such cases concerns the incident of 4th June 2020. In this case too, as has been disclosed by the Petitioner in his written submission, he has been granted bail by a judicial order dated 13th July 2020.

33. Thus on the Petitioner's own showing, even while he is on bail in many of the aforementioned cases, he is shown to be involved in other similar instances of criminal acts and that too in the same area. Therefore, the submission of the Petitioner in the petition that he never misused the liberty granted to him by virtue of those bail orders cannot be accepted. On the other the grounds of detention bear out the genuine apprehension expressed by the State authorities that the ordinary processes of law have been totally inadequate to deter the commission of similar types of offences and that too in the same area. The Court is therefore not able to accept the principal ground of challenge viz., that since the Petitioner was already in judicial custody and since the incidents were of ordinary law and order breaches, there was no occasion for the Opposite parties to invoke Section 3 (2) NSA.

34. In Dharmendra Suganchand Chelawat v. Union of India (1990) 1 SCC 746, the Supreme Court emphasised that the grounds of detention must show that (i) the detaining authority

// 18 //

was aware of the fact that the detenu is already in detention; and

(ii) there were compelling reasons justifying such detention despite the fact that the detenu is already in detention. It further explained:

"The expression "compelling reasons" in the context of making an order for detention of a person already in custody implies that there must be cogent material before the detaining authority on the basis of which it may be satisfied that (a) the detenu is likely to be re-leased from custody in the near future, and (b) taking into account the nature of the antecedent activities of the detenu, it is likely that after his release from custody he would indulge in prejudicial activities and it is necessary to detain him in order to prevent him from engaging in such activities."

35. Considering all the aforesaid aspects, this Court finds that the impugned order of detention was based on the subjective satisfaction of the detaining authority on an assessment of materials available to it (a) the Petitioner was likely to be released from custody in the near future; in fact the bail order was passed on 13th July 2020 in the 24th case mentioned in the grounds of detention, and (b) taking into account the nature of the antecedent activities of the Petitioner, it was likely that after his release from custody he would indulge in prejudicial activities and that therefore, it was necessary to detain him in order to prevent him from engaging in such activities.

36. For all of the above reasons, this Court finds that no grounds have been made out for interfering with the impugned order of preventive detention. The writ petition is accordingly dismissed.

// 19 //

37. As the restrictions due to resurgence of COVID-19 situation are continuing, learned counsel for the parties may utilize a printout of the order available in the High Court's website, at par with certified copy, subject to attestation by the concerned advocate, in the manner prescribed vide Court's Notice No.4587, dated 25th March, 2020 as modified by Court's Notice No.4798, dated 15th April, 2021.

(Dr. S. Muralidhar) Chief Justice

(K.R. Mohapatra) Judge

S.K. Parida