Orissa High Court
Tapu @ Prasanta Das vs State Of Odisha & Others on 9 February, 2023
AFR
THE HIGH COURT OF ORISSA AT CUTTACK
WPCRL No.100 of 2022
In the matter of an application under Article 226 and 227 of the
Constitution of India.
Tapu @ Prasanta Das ....... Petitioner
-Versus-
State of Odisha & Others ......... Opp. Parties
___________________________________________________________
For Petitioner : Mr. Manoranjan Das, Advocate.
For Opposite Parties : Mr. J. Katikia, AGA.
___________________________________________________________
CORAM:
THE HONOURABLE SHRI JUSTICE S. TALAPATRA
THE HONOURABLE SHRI JUSTICE SAVITRI RATHO
JUDGMENT
th
9 February, 2023
S. Talapatra, J. By means of this writ petition, the petitioner has
challenged the Order No.01/C.P Judl (NSA) dated 14.03.2022
(Annexure-1 to the writ petition) passed by the Commissioner of Police
Bhubaneswar-Cuttack, the detaining authority, and urged to set aside
the consequential proceedings and orders as illegal and barred. The
detention of the petitioner, hereinabove referred to as the detenu, under
the National Security Act, (in short NSA) has been given effect to, in
pursuance to the said order.
2. The facts, germane to the challenge, are introduced at the
outset briefly. The detenu was in custody in the circle jail, Choudwar in
connection with Kandarpur PS Case No.181 of 2021 for commission of
offences under Sections 386/387/120/34 IPC [corresponding to GR
Case No.1742/2021 pending in the court of J.M.F.C. (R) Cuttack], the
said order of detention on 14.03.2022 was served on the detenue in the
district jail, Sundargarh declaring him to be detained in exercise of the
powers conferred under Section 3(2) of NSA. On 17.03.2022, by the
Communication No.165/CP-Judl. dated 17.03.2022 (Annexure-2 to the
writ petition) the detaining authority served the grounds of detention. It
has been stated in the said communication dated 17.03.2022 that being
satisfied with the letter submitted by the Opposite Party No.4 dated
14.03.2022, regarding the past activities of the petitioner and the
documents as relied, the Commissioner of Police, Bhubaneswar-
Cuttack was satisfied that the detention of the petitioner/detenu is
required in order to prevent him from acting in any manner prejudicial
to the maintenance of public order and tranquility. The communication
containing the grounds of the detention is available at Annexure-2 of
the writ petition.
3. On scrutiny, it appears that the Commissioner of Police,
Bhubaneswar-Cuttack has also made reference that he had received a
full report detailing the petitioner's past activities along with various
documents which he had contended as the ground of detention, as
communicated on 17.03.2022. The detaining authority has been
subjectively satisfied that the petitioner's detention is required to
prevent him from acting in any manner prejudicial to the maintenance
of Public Order and Tranquility, in Para C of the grounds of detention,
it has been noted that the Deputy Commissioner of Police, Cuttack
UPD has reported that the petitioner's criminal act and anti-social
activities have become a challenge and threat for maintenance of public
order in Cuttack city. According to the Deputy Commissioner of Police,
the petitioner is a " a dreaded criminal and threat as well for
maintenance of public order in Cuttack city" and he is involved in a
series of cases of dacoity, murder, assault, criminal intimidation,
attempt to murder, extortion, robbery, bombing, tender fixing and
smuggling of illegal fire arms/ammunition.
4. It has been also noted that the petitioner had indulged in
attacking the innocent citizens publicly and damaged both public and
private properties. In view of such nature of activities, the peace loving
people is scared of reaching out to police. The petitioner's criminal
activities are disrupting public order and that cannot be prevented by
the normal legal processes. The Deputy Commissioner of Police,
Cuttack apprehended that on the release of the petitioner from judicial
custody, the petitioner will indulge in the similar activities as stated in
his Report. Based on the antecedents of the petitioner, which are
prejudicial to the maintenance of Public Order in the Cuttack City and
other districts, the order of detention under NSA has been issued. For
providing a summary of criminal activities of the petitioner/the detenu,
specific references have been made to: (1) Jagatsinghpur PS Case
No.253 of 2016 under Section 395/120(B)IPC/25/27 Arms Act, (2)
Badachana (Jajpur) PS Case No.258 of 2006 under Section
395/120(B)/25 Arms Act, (3) Nilagiri (Balasore) PS Case No.131 of
2009 under Section 302/34, IPC/25/27 Arms Act, (4) Kishorenagar
(Cuttack Rural) PS Case No.68 of 2012 under Section 9(B), I.E. Act
turned to under Section 3 E.S. Act/120(B)/34 IPC, (5) Nuagaon
(Jagatsinghpur) PS Case No.36/2012 under Section
294/323/506/379/34 IPC/ read with 25/27 Arms Act, (6) Kandarpur
(Cuttack UPD) PS Case No.09 of 2012 under Section 9(B), I.E Act (7)
Jagatsinghpur PS Case No.22 of 2013 under Section 395 IPC read with
25/27 Arms Act, (8) Biridi (Jagatsinghpur) PS Case No.85 of 2014
under Section 307/34 IPC read with Section 25/27 Arms Act, (9) Biridi
(Jagatsinghpur) PS Case No.86 of 2014 under Section 25(1B) (a), Arms
Act, (10) Jagatsinghpur PS Case No.375/2015 under Section
294/506/353 IPC, (11) Balikuda PS Case No.231 of 2015 under Section
387/506/120-B/34 IPC, (12) Kandarpur (Cuttack UPD) PS Case No.03
of 2016 under Section 294/385/506/34 IPC, (13) Rambha (Ganjam) PS
Case No.34 of 2018 under Section 395 IPC read with Section 25/27
Arms Act, (14) Sadar (Cuttack UPD) PS Case No.80 of 2018 under
Section 392/34 IPC, (15) Sadar (Cuttack UPD) PS Case No.100 of
2018 under Section 341/326/307/324/34 IPC read with Section 25/27
Arms Act, (16) Sadar (Cuttack UPD) PS Case No.481 of 2018 under
Section 25 of Arms Act, (17) Cuttack Sadar PS Case No.183 of 2021
under Section 451/506 IPC read with Section 25 Arms Act, (18)
Choudwar PS Case No.281 of 2021 under Section 386/387/506/34 IPC,
(19) Kandarpur PS Case No.181 of 2021 under Section
386/387/120(B)/34 IPC, (20) Sadar (Cuttack UPD) PS SDE/GD No.21
of 2020, (21) Kandarpur (Cuttack UPD) SDE/GD No.31 of 2020, (22)
Kandarpur (Cuttack UPD) SDE/GD No.30 of 2020, (23) Kandarpur
(Cuttack UPD) SDE/GD No.18 of 2021, (24) Kandarpur (Cuttack
UPD) SDE/GD No.17 of 2021 and (25) Kandarpur (Cuttack UPD)
SDE/GD No.16 of 2022.
5. Having referred to the occurrences as reported to the
police, the Deputy Commissioner of Police, Cuttack has observed in the
said grounds of detention as follows:
"The above series of verified incidents clearly
of village Nimeisapur, PS-Kandarpur, Dist-Cuttack
is a threat to public order in the jurisdiction of
districts of Cuttack, Jagatsinghpur, Balasore, Puri,
Ganjam and especially a matter of serious concern
in Sadar, Madhupatna and Kandarpur PS areas of
Cuttack Urban Police district. By creating terror, he
is throwing normal rhythm of life out of gear. He has
now established such notoriety that people are
scared to report against him to the law enforcement
agencies. His modus operandi is to commit heinous
crimes in public and create terror, establish his
dreaded presence and extort money so that he can
rule the street as a done. It is also alarming to see
how often he has been associated with crimes
involving guns and explosives, many in full open
public view and broad-day light. He operates in
gang and also creates more dreaded criminals like
himself in the society."
6. Even for the suspicious activities inside the Circle jail,
Choudwar the petitioner was sent to the District Jail, Sundargarh on
06.03.2022 and he is now in the district jail, Sundargarh. The petitioner
has applied for bail in all the above cases which were not disposed as
yet. As such, it has been estimated that his release as contemplated
would allow him to renew his criminal activities of unleashing terror,
extortion of money and disrupting public order. It may be noted that in
the GDEs against the petitioner/the detenu some allegation has been
made. On the date of filing of the grounds of detention against those
GDEs, Specific police cases were not registered. But in Jagatsinhpur PS
Case No.253 of 2006, the petitioner has been acquitted by the Addl.
District Judge, Jagatsinghpur on 22.12.2009. In Kishorenagar (Cuttack
Rural) PS Case No.68 of 2012, as referred above, the petitioner has
been acquitted on 10.12.2013 by the 1st Addl. District Judge, Cuttack.
Sadar (Cuttack UPD) Case No.481 of 2018 under Section 25 of the
Arms Act is still pending awaiting the sanction order. In all other cases,
the police has filed the charge sheet against the petitioner and those are
pending for trial.
7. It may be noted at this stage that by the order dated
14.03.2022, the petitioner was detained under Section 3(2) of NSA. The
grounds of detention was communicated after 3 days after the
communication or of the order of detention i.e.17.03.2022 and the order
of detention dated 14.03.2022 has been approved by the State
Government on 29.03.2022. It appears that the grounds of detention in
support of the order of detention dated 14.03.2022 have been formed on
the report of the Commissioner of Police Bhubaneswar-Cuttack which
had taken note of the report of the DCP Cuttack on the activities of the
petitioner/the detenu. The order of detention and documents in support
of the grounds of detention were sent to the NSA Advisory Board. In
the initial order of detention dated 14.03.2022, there is no specific
period of detention. The Government of Odisha by their order dated
26.04.2022 approved the said detention order and had directed to keep
the petitioner under detention in the District Jail, Sundargarh for 3
months from the date of his detention or until further orders.
8. On the request of the Commissioner of Police, the
detaining authority, the period of detention was extended to 6 months
from the date of the detention in exercise of power as conferred by
Section 12(1) read with Sections 3(3) and 13 of NSA. The Government
approved the order dated 10.06.2022 (Annexure-5 to the writ petition).
The petitioner/the detenu has challenged the said order of detention on
the ground that there was infraction in compliance of the provisions of
NSA as there is no threat to the national security, defence, maintenance
of public order and maintenance of supplies and services essential to the
community by the detenue. As such, all the consequential proceedings
are also bad in law. Having referred to Section 3(1) and Section 3(2) of
NSA, it has been contended that the explanation provided below Section
3(2) of the NSA clearly provides that "acting in any manner prejudicial
to the maintenance of supplies of commodities essential to the
community" does not include "acting in any manner prejudicial to the
maintenance of supplies of commodities essential to the community" as
defined in the Explanation to the Sub section (1) of Section 3 of the
Prevention of Black Marketing and Maintenance Act, 1980 and hence,
no order of detention shall be made unless the grounds provided in the
NSA are made out.
9. It has been asserted by the petitioner in the petition that he
had never threatened the national security. From the catalogue of the
cases as provided in the grounds of detention it will appear that all those
cases were under trial or under investigation. Not a single case has been
referred where the petitioner was convicted. In reply to the averments of
the petitioner, the detaining authority P.W.3 has provided the sequence
of events in the following manner:
"(a) 14.03.2022 - Detention order was passed.
(b) 15.03.2022 - The detention order was communicated to the
Home Department thorough E-Mail.
(c) 17.03.2022 - Grounds of detention was served on the petitioner.
(d) 25.03.2022 - State Government made a reference to the
Advisory Board.
(e) 28.03.2022 - The petitioner submitted his representation to the
Advisory Board.
(f) 18.04.2022 - Representation of the detenue (the petitioner) was
rejected by the Government."
10. It has been asserted by the Opposite Party No.3 in his
counter affidavit that the court may examine whether the procedure has
been observed or not. According to the Opposite Party No.3, the
grounds of detention had been explained to the petitioner. It has been
contended that the release of the petitioner will definitely cause threat to
the public order. In order to maintain the public order in Cuttack City
the preventive order was passed on due diligence. It has been also
asserted that the Government of Odisha has approved the detention
order. The Opposite Party No.3 had revisited the cases as aforenoted for
making reference to the pattern of activities the detenu/the petitioner
had indulged in. It has been asserted that at the time of making the order
for extension of detention, all the factors were carefully reviewed again
by the State Government. The detention of the petitioner has prevented
further disruption of public order and the confidence of the public in the
administration in Cuttack City has been restored. The police is now
maintaining the public order efficiently. It is pertinent to note that the
representation of the petitioner as submitted through the Superintendent,
District Jail, Sundargarh on 28.03.2022 (Annexure-D3 to the counter
affidavit filed by the Opposite Party No.5) was dismissed by the
Government and the said decision was communicated on 18.04.2022
(Annexure-E3 to the counter affidavit filed by the Opposite Party No.3).
The Central Government did not accede to the request of the
petitioner/the detenu for interfering with the detention order dated
14.03.2022. One additional affidavit has been filed by the wife of the
petitioner on 07.09.2022 by stating that even though the detention/order
was passed by the Opposite Party No.3 on 14.03.2022, the petitioner
was produced before the NSA Advisory Board on 12.04.2022 after
lapse of 3 weeks-which violates the mandatory provision of Section 20
of NSA which clearly provides as follows:
"Reference to Advisory Boards.--Save as
otherwise expressly provided in this Act, in every
case where a detention order has been made
under this Act, the appropriate Government shall,
within three weeks from the date of detention of a
person under the order, place before the Advisory
Board constituted by it under section 9, the
grounds on which the order has been made and
the representation, if any, made by the person
affected by the order, and in case where the order
has been made by an officer mentioned in sub-
section (3) of section 3, also the report by such
officer under sub-section (4) of that section."
11. In this regard, we may refer to a decision of the Apex
Court in State of U.P. V. Mahant Singh: AIR 1986 SC207 where the
apex court had observed that Section 10 of NSA is mandatory and non-
compliance with or infraction thereof would certainly be fatal. Section
10 provides that the State Government has the obligation to cause the
papers relating to detention placed, alongwith the representation, if
made, within three weeks from the date of detention before the
Advisory Board.
12. In support of the aforenoted contention, in the affidavit
filed by Sarojini Das, the wife of the detenu, the communication dated
06.04.2022 has been referred. By the said communication, the
Commissioner of Police, Bhubaneswar-Cuttack, the detaining authority
has directed the Deputy Commissioner of Police, Cuttack, UPD to make
the necessary escort arrangement for production of the petitioner before
the NSA Advisory Board on 12.04.2022. According to the petitioner, it
is apparent that he was only produced before the NSA Advisory Board
on 12.04.2022. Meanwhile, the State Government had rejected the
representation of the petitioner dated 28.03.2022, as would be evident
from the communication dated 18.04.2022. By the representation, the
petitioner has seriously questioned the detention for being in defiance of
provisions of NSA. When the detention order was passed, the petitioner
was in the judicial custody. His detention itself shows that the detaining
authority did not consider the fact of petitioner's detention that is why
the further detention had been asked for. According to the petitioner, the
detaining authority had, without any sustainable reason exercised the
jurisdiction on contemplation which is more imaginative, than
subjective. The subjective satisfaction means an interference which is
grounded on facts but its analysis may differ from one individual to
other. But according to the petitioner, this ground of disruption of the
public order by the petitioner did not even exist at the time of passing
the said order of detention on 14.03.2022. According to the petitioner,
the police had been framing him in several cases, but he had been
securing acquittal. He got bail in some of the cases and in other cases he
is trying to obtain bail. Hence, as in a lawful manner the petitioner
detention cannot be secured by the State, they have arbitrarily used the
provision of NSA to detain the petitioner/the detenu. The materials
relied according to the petitioner are grossly inadequate.
13. The petitioner/the detenu has given his views in detail in
regard to the cases which are catalogued in the grounds of detention.
Those materials are not quoted for sake of brevity, as those have been
recorded. It has been asserted further that no detention order can be
passed to prevent a person from getting released on bail as that is not the
object of NSA. Reference has been made to a case of this court in Rabi
@ Rabindra Behera @ Chickan Rabi -Vrs- State of Orissa and
Others: 2003 (11) OLR (NOC) 74.
14. The petitioner/the detenu has asserted that "the detenue has
been wrongly estimated as an antisocial and habitual criminal. No
doubt the detenu has got some political affiliation and a social activist
in the locality in the habit of protesting the high-handness of the persons
of ruling party as well as the police against the downtrodden people of
his locality, which has caused the irk of the police of that area who have
become a tool in the [hand] of the political leader. The detenu has been
languishing in jail custody since 09.04.2018 as the under trial and
thereafter by the order of detention also."
15. It appears from the additional affidavit filed by the
petitioner's wife on 11.11.2022 that the petitioner was released on
13.09.2022 as he had completed six months from the date of detention
vide the order dated 14.03.2022. The petitioner was released from the
judicial custody on 13.09.2022 at about 6 a.m. The Superintendent of
Circle Jail, Sundargarh contacted him over phone and requested him to
return to jail. Accordingly, the petitioner reached the jail on 14.09.2022.
In this context, the question that has been raised is that whether the
order of extension being purportedly not passed before expiry of the
earlier order, is valid or whether by operation of the said order, the
detenu can be detained again. In this regard, the Superintendent of
District Jail, Sundargarh has, in terms of our direction dated 02.12.2022,
filed an affidavit and stated that by the order dated 14.03.2022, the
petitioner was detained under NSA until further order. Thereafter, by
the order dated 26.04.2022, the petitioner's detention was confirmed
and it was directed that the detention will be continued for 3 months
from the date of his detention under NSA meaning from 15.03.2022, the
date when the copy of the order was served on the petitioner. Latter on
by the order dated 10.06.2022, the detention was extended for 6 months
in total from the date of commencement of detention from i.e. on
15.03.2022. It has been admitted by the Superintendent, Sundargarh
District Jail that he had released the detenue on 13.09.2022 on expiry of
6 months' detention from the date of first detention and he had
communicated the same to the O.S.D.-cum-Special Secretary to
Government, Home Department, Bhubaneswar, also to Superintendent
of Police, Sundargarh, Superintendent of Police, Rourkela,
Commissioner of Police, Bhubaneswar-Cuttack Commissionerate,
Bhubaneswar, Director General & Inspector General of Police, Odisha,
Cuttack, Revenue Divisional Commissioner (C.D), Cuttack and Director
General of Prisons, Odisha, Bhubaneswar vide his letter No.1906 dated
13.09.2022 as he did not receive any order for extension of detention.
According to him on 13.09.2022 at about 2.30 PM another order was
received by him from the O.S.D -Cum- Special Secretary to the
Government, Home Department vide the Memorandum No.820/C dated
13.09.2022. The same order was also received from the Commissioner
of Police, Bhubaneswar-Cuttack Commissionerate (the detaining
authority) on the same day i.e. 13.09.2022 at about 6 p.m, regarding
further extension of detention period of the detenu for further 3 months.
The Superintendent of Sundargarh District Jail contacted the detenu-
petitioner to return to the jail custody. On 14.09.2022, the order of
extending the term of detention was served on the petitioner. The
Superintendent of District Jail, Sundargarh in Para 9 of his affidavit has
stated as follows:
"That it is submitted that the date of release of the
detenue-petitioner was calculated and arrived to
13.09.2022 instead of 14.09.2022 (as the first
detention order was served on 15.03.2022) which
was due to over-sight and pressure of official
works, though the detenu was inadvertently
released only day before the actual date and
brought to back to Jail custody on the same night.
In view of the above irregularities, an enquiry was
conducted by the Deputy Inspector General of
Prisons, Sambalpur Range, Sambalpur as per
direction of the Government in Home Department
vide letter No.831 dated 15.09.2022 and Director
General of Prisons, Odisha, Bhubaneswar and
after conclusion of the said enquiry, the deponent
has been warned/cautioned by the Director
General of Prisons & D.C.S., Odisha not to
repeat such type of irregularities henceforth."
16. Mr. M. Das, learned counsel appearing for the petitioner
has submitted that there was clear infraction of the Section 3(4) of NSA,
which provides that where any order is made under this section by an
officer mentioned in sub-section (3), he shall forthwith report the fact to
the State Government to which he is subordinate together with the
grounds on which the order has been made and such other particulars as,
in his opinion, have a bearing on the matter, and no such order shall
remain in force for more than twelve days after the making thereof,
unless, in the meantime, it has been approved by the State Government;
provided further that where under section 8, the grounds of detention are
communicated by the officer making the order after five days but not
later than 10 days from the date of detention, this sub-section shall
apply subject to the modification that, for the words "twelve days", the
words " fifteen days" shall be substituted.
17. It would be appropriate to refer to the provisions of Section
3(3) of NSA. It provides that "if, having regard to the circumstances
prevailing or likely to prevail in any area within the local limits of the
jurisdiction of a District Magistrate or a Commissioner of Police, the
State Government is satisfied that it is necessary so to do, it may, by
order in writing, direct, that during such period as may be specified in
the order, such District Magistrate or Commissioner of Police may also,
if satisfied as provided in sub-section (2), exercise the powers conferred
by the said sub-section; provided that the period specified in an order
made by the State Government under this sub-section shall not, in the
first instance, exceed three months, but the State Government may, if
satisfied as aforesaid that it is necessary so to do, amend such order to
extend such period from time to time by any period not exceeding three
months at any one time."
[Emphasis Added]
18. Sub-Section 2 of Section 3 of the NSA stipulates that "the
Central Government or the State Government may, if satisfied with
respect to any person that with a view to preventing him from acting in
any manner prejudicial to the security of the State or from acting in any
manner prejudicial to the maintenance of supplies and services
essential to the community it is necessary so to do, make an order
directing that such person be detained."
19. The explanation as referred by the writ petition cannot have
any bearing in the present case, in as much as the grounds of detention
have been supplied within the period as prescribed.
20. Mr. Das, learned counsel has contended that the grounds on
which the order of detention has been made was communicated
forthwith with such other particulars as having bearing on the matter.
He has categorically stated that such order of detention is not supposed
to be routinely in force for 12 days after making it, unless in the
meantime, it has been approved by the State Government. As we have
already referred from the counter affidavit filed by the Opposite Party
No.3 that the detention order was passed on 14.03.2022 and that was
communicated to the Home Department through E-Mail on 15.03.2022
and on 17.03.2022 grounds of detention was served on the petitioner
and the State Government had approved the order of detention on
25.03.2022.
21. According to Mr. Das, learned counsel the word
the Apex Court in Hetchin Haokip v. State of Manipur and Others:
AIR 2018 Supreme Court 3419. In that case, the order of detention
was challenged on the ground that the District Magistrate failed to
report the detention to the State Government "forthwith," in terms
of Section 3(4) of the Act. The District Magistrate reported the
detention after a lapse of five days, which violated Section 3(4), NSA.
Section 3(4), NSA provides that detaining authority in terms of Section
3(3) NSA shall report of the detention order to the State Government,
along with the grounds, based on which the order was made, and any
other relevant facts. It also provides that no detention order shall remain
in force for more than twelve days after making the order, unless it is
approved by the State Government.
22. It was contended in that petition that proviso to Section
3(4) postulates that if the ground of detention were communicated by
the officer making the order after five days but not later than ten days
from the date of detention, the words 'twelve days', will be substituted
by the words 'fifteen days'.
23. Section 8, NSA requires the authority making the detention
order to communicate the detenu the grounds for his detention. The said
communication has to be made "as soon as may be," but not later than
five days from the date of detention, in ordinary circumstances, and not
later than ten days from the date of detention, in exceptional
circumstances (with reasons to be recorded in writing for the delay).
The section also requires the detaining authority to give the detenu the
earliest opportunity to make a representation against the detention order
to the appropriate government.
24. The question before the High Court of Manipur was
whether the act of the District Magistrate, in reporting the order of
detention to the State Government, after five days, was in contrast to the
requirement of reporting it "forthwith". The appellant had contended
before the High Court that "forthwith" means immediately or without
delay. It was further submitted that the delay of five days by the
Magistrate, in reporting the detention to the State Government vitiates
the order of detention.
25. The High Court of Manipur dismissed the writ petition,
holding that the scope of Section 3(4) has to be understood according to
the scheme of the Act, and not in isolation. The High Court
juxtaposed Section 3(4) with Section 8 and it has been held that
under Section 3(4), the report of the detention has to be sent along with
the grounds for the detention. On conjoint reading of Sections
3(4) and 8, the High Court reasoned that the purpose of sending the
report (with grounds) to the State Government under Section 3(4), is to
enable the State Government to decide whether or not to approve the
order of detention. If the State government does not approve the order
of detention within twelve (or fifteen) days, it will lapse. On the other
hand, the purpose of Section 8 is more sacrosanct, as it is to make the
detenu aware of the reasons for his detention so that he may make a
representation to the authorities for his release. The requirement
under Section 8 was held to be on a higher pedestal than the one
under Section 3(4). If Section 3(4) was interpreted in isolation, it would
mean that while the authority can furnish the grounds of detention to the
detenu within five days (or in exceptional circumstances, ten days), it
must furnish the report with grounds to the State Government
immediately, or instantaneously. According to the High Court, such
action is not contemplated in NSA.
26. The apex Court while examining the correctness of that
interpretation of the High Court in respect of the term "forthwith" under
Section 3(4) of NSA had occasioned to dwell upon various precedents.
It has been observed thereafter as follows:
"10. This Court has examined the meaning of
"forthwith," in the context of the statutes
providing for preventive detention. In Keshav
Nilkanth Joglekar v The Commissioner of Police,
Greater Bombay, a Constitution Bench of this
court interpreted Section 3(3) of Preventive
Detention Act, 1950 [now repealed], which was
similar to Section 3(4) of the Act. The court
compared the text of Section 3(3) with Section
7 (equivalent to Section 8 of the Act). It observed
that "forthwith" is different from "as soon as may
be" in that, under Section 7 the time permitted is
"what is reasonably convenient," whereas
under Section 3(3), only that period of time is
allowed, where the authority could not, without its
own fault, send the report. The court laid down
the following test for determining whether the
action of the authority was compliant with the
"forthwith" requirement:
"Under section 3(3) it is whether the report has
been sent at the earliest point of time possible,
and when there is an interval of time between the
date of the order and the date of the report, what
has to be considered is whether the delay in
sending the report could have been avoided."
(emphasis supplied)
11. In Bidya Deb Barma v D.M. Tripura,
Agartala2, a Constitution Bench of this court held
that:
"When a statute requires something to be done
'forthwith,' or 'immediately' or even 'instantly,' it
should probably be understood as allowing a
reasonable time for doing it."
12. In S.K. Salim v State of West Bengal3, a two
judge Bench of this court observed that laws of
preventive detention must be construed with the
greatest strictness. However, the rule of strict
interpretation does not mean that the act has to be
done instantaneously, or simultaneously with the
other act, without any interval of time. Here, the
court was dealing with Section 3(3) of the
Maintenance of Internal Security Act, 1971
(which is equivalent to Section 3(4) of the Act).
The Court held that:
"...the mandate that the report should be made
forthwith does not require for its compliance a
follow-up action at the split- second when the
order of detention is made. There ought to be no
laxity and laxity cannot be condoned in face of the
command that the report shall be made forthwith.
The legislative mandate, however, cannot be
measured mathematically in terms of seconds,
minutes and hours in order to find whether the
report was made forthwith. Administrative
exigencies may on occasions render a post-haste
compliance impossible and therefore a reasonable
allowance has to be made for unavoidable
delays."
13. From the above cases, the position that
emerges is that "forthwith," under Section 3(4),
does not mean instantaneous, but without undue
delay and within reasonable time. Whether the
authority passing the detention order reported the
detention to the State Government within
reasonable time and without undue delay, is to be
ascertained from the facts of the case. In
Joglekar, (AIR 1957 SC 28) there was a delay of
eight days by the Police Commissioner, in sending
the report to the State Government. However, the
court found that the reasons for the delay were
reasonable, since the Commissioner and his team
were occupied in maintaining law and order
during a particularly tense time in Mumbai.
14. The High Court held in its impugned judgment
that:
"While the delay in furnishing grounds of
detention under Section 8 of the Act may
prejudice the right of the detenu as guaranteed
under Article 22(5) of the Constitution, furnishing
of the grounds of detention under Section 3(4)
may not prejudice the detenu so long as the report
along with the grounds of detention are furnished
within a reasonable time, but certainly within 12
days of the detention...If the report along with the
grounds of detention is submitted beyond 12 days,
it would certainly vitiate the detention order as
without the report and the grounds of detention,
the State Government could not have applied their
minds whether to approve or not to approve the
detention order under Section 3(4) of the Act."
15. The High Court is not correct in holding that
as long as the report to the State Government is
furnished within twelve days of detention, it will
not prejudice the detenu. It is settled law that a
statute providing for preventive detention has to
be construed strictly. While "forthwith" may be
interpreted to mean within reasonable time and
without undue delay, it certainly should not be
laid down as a principle of law that as long as the
report to the State Government is furnished within
12 days of detention, it will not prejudice the
detenu. Under Section 3(4), the State Government
is required to give its approval to an order of
detention within twelve, or as the case may be,
fifteen days.
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 laxity."
[Emphasis Added]
27. Mr. Das, learned counsel has also referred to a decision in
State of Uttar Pradesh Vs. Mahant Singh: AIR 1986 SC 207 where
the apex court has observed that the provisions of Section 10 of NSA
are mandatory. This Court has on more than one occasion indicated in
unmistakable terms that the safeguards available to a detenu are what is
guaranteed to him under Article 22(5) of the Constitution. The
inflexible time schedule for screening by the Advisory Board is an
example of strict compliance. Reference has been made to Khudi Ram
Das v State of West Bengal: (1975) 2 SCR 832 where the apex court
had occasion to observe as follows:
"The constitutional imperatives enacted in
this Article 22 are twofold: (1) the detaining
authority must, as soon as may be, that is as
soon as practicable after the detention,
communicate to the detenu the grounds on
which the order of detention has been made,
and (2) the detaining authority must afford
the detenu the earliest opportunity of making
a representation against the order of
detention. These ate the barest minimum
safeguards which must be observed before
an executive authority can be permitted to
preventively detain a pet son and thereby
drown his right of personal liberty in the
name of public good and social security."
[Emphasis Added]
28. In Mahant Singh (supra) reference has been made in A.K.
Roy v. Union of India: (1982) 2 SCR 272. In that report, similar view
was taken regarding compliance of the procedural requirements. In
Mahant Singh (supra), it has been categorically stated that the State
Government has the obligation to cause the papers relating to the
detention placed, along with the representation, if made, within three
weeks from the date of detention before the NSA Advisory Board.
Where a representation is not made in regard to the detention, the papers
without the representation shall have to be placed before the NSA Board
within the time prescribed. Where a representation is made within
reasonable time, the same has also to be promptly attended to and has to
be placed before the Board.
29. Mr. Das, learned counsel has referred a decision of this
court in Sagar Parida Vs. State of Odisha and Others,[Judgment
dated 19.08.2020 delivered in Writ Petition(Criminal) No.37 of 2020]
where this court, having considered Hetchin Haokip (supra) and
Commissioner of Police Vs. C. Anita: 2004 (7) SCC 467 regarding
the extension of detention period by the Government without approval
of the Advisory Board, held that the detention order for a period of
twelve months at a stretch without proper review is deterrent to the
rights of the detenu. However, a reference was made to A.K. Roy
(supra), where the apex court has observed as follows:
"On reading of both the aforesaid decisions it
appears, the legal position involving the
above aspect has been settled expressing that
it is only after the Advisory Board's opinion a
duty is cast on the appropriate Government to
confirm the detention order and continue the
detention of person concerned for such period
as it thinks fit. This Court, therefore, observes,
after the opinion and report of the Board, a
power is already vested with appropriate
Government to fix the period for which the
detenu shall be detained. This court is of the
opinion that discretion lies to the appropriate
Government to pass extension order without
further reference of the matter to the Advisory
Board for its further opinion."
30. Mr. Das, learned counsel has referred to Sagar Parida
(supra), particularly Para 11.3, which reads as follows:
"In the case at hand, the Government received the
report from the Commissioner of Police
(O.P.No.3) on 27.12.2019 about the detention of
the petitioner commencing from 19.12.2019. No
explanation has been given in any manner as to
why report could not be submitted to the
Government earlier .This is a laxity remains
unexplained and this vitiates the order of
detention."
31. Mr. J. Katikia, learned Addl. Government Advocate
appearing for the State, particularly for the Opposite Party No.3, has
clearly submitted that the release of the petitioner (the detenu) from the
jail was a clear mistake by the Superintendent of Jail which he has
corrected subsequently by restricting the custody. He has also stated that
there was no infraction of Section 3(4) or Sections 8 or 10 in as much as
it has been clearly stated by the Opposite Party No.3 that the detention
order was passed on 14.03.2022 and on 15.03.2022, the same was
communicated to the Home Department through E-Mail. Apart from
that, the State Government made reference to the NSA Advisory Board
on 25.03.2022. Meanwhile, the petitioner had received the grounds of
detention on 17.03.2022. It would be apparent from the representation
filed by the petitioner under Section 8 of NSA that the said
representation was filed on 28.03.2022, meaning the State Government
did not wait for the receipt of the representation from the detenu (the
petitioner) and they transmitted all records to the NSA Board for their
review. It is needless to say that the grounds of detention were made
available to the petitioner within 3 days from the date when the order of
the detention was implemented.
32. As such, according to Mr. J. Katikia, learned Addl.
Government Advocate there is no infraction. It has been well settled that
where the NSA Advisory Board has reported that there is, in their
opinion, sufficient cause for the detention of a person, the appropriate
Government may confirm the detention order and continue the detention
of the person concerned for such a period, as it thinks fit. Therefore,
there is no question of further review by the NSA Advisory Board. On
review after every 3 months, if it is found by the State Government that
detention is no more required, then at their discretion, the detenu may be
released.
33. According to Mr. J. Katikia, learned Addl. Government
Advocate that whenever the extension order is issued by the State
Government, they take into their consideration all the material facts and
only thereafter, they decide to extend the period of detention. Section
13, NSA clearly provides that nothing contained in section 13 shall
affect the power of the appropriate Government to revoke or modify the
detention order at any earlier time.
34. Section 13 provides the maximum period of detention for
which any person may be detained in pursuance to any order of
detention which has been confirmed under section 12 shall be twelve
months from the date of detention.
35. Having appreciated the submission of the learned counsel
for the parties, we would like to observe that in the case of Mrs. T.
Debaki Vs. Government of Tamil Nadu and Others: 1990 SCR (1)
836 and Harpreet Kaurharvinder Vs. State of Maharashtra and
Another: AIR 1992 SC 979, 1992 SCR (1) 234, it has been enunciated
by the apex court that the detention order for a period of 12 months at a
stretch without proper review is prejudicial to the rights of detenu. But
in the case in hand, no such issue has been raised and as a result, we did
not have the opportunity to consider whether after proper review the
order of detention was extended by the State Government or not.
36. We gather from the records that on the very day when the
order of detention dated 14.03.2022 was communicated to the
petitioner, the State Government was also communicated the said order
of detention for their approval. Hence, there is no infraction of Section
3(4) of NSA. Therefore, the ratio of Hetchin Haokip (supra) has no
relevance in the present case. Even the State Government had without
waiting for the representations to be filed by the petitioner made the
reference to the NSA Advisory Board, on 25.03.2022. Hence, there is
no delay.
37. As the NSA Advisory Board had reported their opinion to
the effect that there is sufficient cause for detention of the petitioner and
the appropriate Government may confirm the detention order and
continue the detention of the person concerned for such period as they
think fit.
38. Having observed thus, we hold that there is no procedural
impropriety. But we would like to observe that at the time of passing
the order extending the period of detention, the detaining authority is
fastened with the duty to make assessment whether the extension is
essential or not. They cannot pass the bald order of extension, but the
order of extension shall reflect the crux of the consideration. No
challenge has been raised on this point. Consequently, no records have
been produced before us to consider that aspect. A person who is
detained under the provisions of NSA suffers incarceration without trial.
Hence, safeguards as provided to the detenu are to be protected by the
constitutional courts for deterring the State from arbitrary use of
detention. In such cases, whether continuous detention of such person is
necessary or not, is to be assessed and reviewed from time to time. The
legislature has specifically provided that the "Advisory Board" shall
review the grounds of detention. Placing a person under detention for a
period of twelve months at a stretch without proper review, is
detrimental to the rights of the detenu. Hence, after every three months,
there shall be a substantive review to decide whether the detenu should
be released or not (See Section 3(3), NSA). In absence of such review,
the extension order is bound to vitiate. In such circumstances, the
detenu would be entitled for release.
39. But in the present case, no records have been produced
from which we can discover that there had been no review for
extension.
40. In view of the aforesaid discussion, we do not find any
merit in this writ petition and hence, it is dismissed.
41. However, the petitioner is at liberty to ask for the review of
his detention. In that event, the State Government shall consider his
prayer and review whether further extension of the period of detention
is warranted or not.
42. There shall be no order as to costs.
43. Certified copies be granted as per rules.
(S. Talapatra)
Judge
I agree. (Savitri Ratho)
Judge
Orissa High Court, Cuttack.
The 9th February, 2023/ R.R. Nayak, Jr. Steno.
