Orissa High Court
Papu @ Dhirendranath Baral vs Principal Secretary on 20 March, 2023
AFR
IN THE HIGH COURT OF ORISSA AT CUTTACK
WPCRL No. 158 of 2022
An application under Articles 226 and 227 of the Constitution of India
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Papu @ Dhirendranath Baral ...... Petitioner
-versus-
Principal Secretary, Government of
Odisha and others ...... Opposite Parties
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For Petitioner : Mr. Debasis Sarangi, Advocate
For Opposite Parties No.1 & 2 : Mr. J. Katikia, AGA
For Opposite Party No.3 :Mr. Satyabrata Panda, CGC
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CORAM:
HONOURABLE MR. JUSTICE S. TALAPATRA
HONOURABLE MISS JUSTICE SAVITRI RATHO
JUDGMENT
20th March, 2023
S. Talapatra, J By means of this petition under Article 226 of the
Constitution of India, the detenu urges for issuance of writ of
habeas corpus for his release contending that he has been
detained under Sub-Section (2) of Section 3 of the National
Security Act, 1980 (NSA, in short) illegally and totally in
violation of the provision of Article 22 of the Constitution of
India, which guarantees protection against illegal detention.
2. Briefly stated the Petitioner's case is that, by virtue of
the order dated 08.09.2022, Annexure-1 to the writ petition,
issued in exercise of the powers conferred by Sub-Section (2)
of Section 3 of the NSA, the Petitioner [the detenu] has been
detained in custody. According to the detenu, at the direction
of the Home Department, Government of Odisha as reflected
in its Order No.704/C dated 27.07.2022, the process of
detention was initiated. By the order dated 20.09.2022,
Annexure-2 to the writ petition, the State Government has
confirmed the said detention order in exercise of powers
conferred under Sub-Section (4) of Section 3 of the NSA. The
Petitioner was served the grounds of detention, Annexure-3 to
the writ petition, on 12.09.2022, though it has been shown that
there is no date affixed on the grounds of detention. The
Opposite Party No.2 had informed the detenu that his case had
been referred to the NSA Advisory Board by the letter dated
21.09.2022, Annexure-4 to the writ petition. Again on
23.09.2022, the detenu received a letter, Annexure-5 to the
writ petition, from the Opposite Party No.2 apprising him that
his case had been referred to NSA Advisory Board and the
detenu may appear in person. The Opposite Party No.2
informed the detenu by the letter dated 27.09.2022, Annexure-
6 to the writ petition about the date of hearing on 13.10.2022
before the NSA Advisory Board.
3. The Petitioner had submitted his representation,
Annexure-7 to the writ petition to the Principal Secretary to
Government of Odisha, Home (Special Section) Department,
through the Jail Authority. The Opposite Party No.1 rejected
the said representation. Even the Central Government had
rejected his representation by the order dated 21.10.2022,
Annexure-9 to the writ petition.
4. After the NSA Advisory Board held that the
detention order did not suffer from any infirmity, the State
Government in exercise of powers conferred under Section
12(1) read with Sections 3 (3) and 13 of NSA confirmed the
order of detention for 3 (three) months from the date of
detention or until further order, by the order dated 01.11.2022,
Annexure-10 to the writ petition.
5. The grounds, as cited in this petition for challenging
the said order of detention dated 08.09.2022 can be
summarized as follows:
(i) The detaining authority while serving the order of
detention to the detenu had not disclosed the grounds of
detention or the basic facts and material particulars which had
persuaded the authority in making the order of detention. The
cardinal fact which formed the foundation of satisfaction, as
regards that the detention is terrorizing the general public. It
had been, later on, disclosed that many of his acts were not
reported to the police out of fear.
(ii) The statute carved out the role of the Opposite
Party No.1, as one of the threshold arbiter. The detaining
authority as the delegate of the Opposite Party No.1 passed the
order of detention. But its further operation is dependent on
the approval from the Opposite Party No.1. If such approval is
not placed on record within 12 days or forthwith, whichever is
earlier, the order of detention becomes inoperative. But in this
case, the process of detention was initiated by the Opposite
Party No.1. It is, according to the detenu, a complete go-bye to
the scheme of NSA. Without sanction of law, the Opposite
Party No.1 had issued the direction for detaining the detenu.
Thus, it can be assumed that the Opposite Party No.2 being
the delegate of the Opposite Party No.1 was not in a position
to draw his subjective satisfaction independently, based on the
materials placed before him. As a result, the order of detention
has suffered the vice of subjugated consideration by the
competent authority.
Even though the Petitioner has contended that the
said role of the Opposite Party No.1 has made the power of
review of the NSA Advisory Board meaningless and as such,
the entire process suffers from the procedural unfairness. At
this stage, we would discard the above ground in as much as
under the Scheme of NSA, the said NSA Advisory Board
functions independently.
(iii) The detenu has not been served the particulars
that had been purportedly considered by the detaining
authority, while passing the order of detention. For example,
the report of the Superintendent of Police, Puri, which has
been referred to, in the order of detention dated 08.09.2022,
Annexure-1 to the writ petition. Thus, the detenu has claimed
to have suffered serious detriment in exercise of his right to
make an effective representation as the detaining authority has
acted in a manner in contrast to the provisions under Article
22 (5) of the Constitution of India. The detenu has been denied
access to all the records, which were considered at the time of
passing the order of detention by the Opposite Party No.2.
Such denial violated the provision of Articles 21 and 22 of the
Constitution of India.
(iv) The detaining authority has considered stale
cases, even the cases in which the detenu has been acquitted
from the charge. Some recent cases referred in the station
diary entries have been considered as additional grounds for
passing the order of detention.
(v) The detention had been directed when the detenu
was in the judicial custody and the Opposite Party No.2 was
quite aware of that position. Despite that the order of detention
had been passed on apprehension that, if the detenu was
allowed to stay free that might cause serious harm to the
public order.
(vi) The Opposite Party No.2 while passing the order
of detention did consider irrelevant materials, which he ought
not have considered. Hence, the order of detention is vitiated.
That apart, Mr. D. Sarangi, learned counsel, having appeared
for the detenu, has submitted that at the time of passing of the
order of detention, the grounds of detention were not prepared
and those grounds of detention were prepared after passing the
order of detention, which according to him rendered the order
of detention invalid.
6. Mr. Sarangi, learned counsel has quite emphatically
stated that there was no subjective satisfaction of the Opposite
Party No.2 based on the materials those were placed before
him. He had acted as the delegate of the Opposite Party No.1,
but the satisfaction has to be drawn by the detaining authority
in the manner as prescribed by law. Mr. Sarangi, learned
counsel has asserted that such satisfaction of the detaining
authority was non-existent. Not a single instance has been
placed in the grounds of detention, which can establish that
the acts of the detenu are prejudicial to the public order,
security of the nation or to the supply of the essential
commodities. Mr. Sarangi, learned counsel has robustly
submitted that the order of detention and the subsequent
orders of confirmation or the order of extension of detention
are therefore, liable to be interfered with and the detenu is
entitled to release from the illegal custody.
7. The Opposite Parties No.1 and 2 filed two separate
counter-affidavits through Mr. J. Katikia, learned Additional
Government Advocate. In the counter affidavits, both the
Opposite Parties No.1 and 2 have stated that the procedural
fairness and propriety have been strictly observed. In order to
prevent the detenu from indulging in the antisocial activities,
the detaining authority was persuaded to take resort to the
provisions contained in NSA. According to them, the writ
petition is devoid of merit. The detention order and the
subsequent orders of extension are justified in view of the
detenu's voluminous records of criminal activities. The
detention order itself speaks about the continuous criminal
activities of the detenu. The Opposite Party No.2, in his
counter affidavit has averred as follows:
"The detenu is a habitual offender involved in a series of
significant cases including in heinous crimes like murder,
collection of dada booty by terrorizing the innocent public,
attempt to murder, extortion etc. which speaks of his anti-
social criminal tendency and attitude, least to speak up he
has no regard to the normal law of the land and his
activities jeopardize the public order, peace and tranquility
of the area. In spite of facing trials in a series of heinous
crime, no change has been noticed in his activities and still
he poses a serious threat to the public order. It is to further
submit that the detenu has been involved in series of
criminal cases which has proved his criminal bend of mind.
According to Opposite Party No.2 those materials are
properly verified and the subjective satisfaction for
detention was drawn."
According to the Opposite Party No.2, the materials
on the basis of which the detaining authority has passed the
order of detention has been recorded in the grounds of
detention, which were served on the detenu on 12.09.2022.
The Opposite Party No.2 has placed on record the
representation of the detenu. The said representation was
forwarded to the NSA Advisory Board. In response to the
assertion that the Opposite Party No.2 has passed the order of
detention at the direction of the State Government, the
Opposite Party No.1, it has been contended that the said
allegation is misleading and exaggerated. Thereafter, it has
been stated that the Opposite Party No.2 is the delegate of the
Opposite Party No.1 in view of sub-Section (3) of Section 3 of
NSA. According to the Opposite Party No.2, the order of
detention had been passed on applying the judicious mind and
in consideration of the criminal antecedents of the detenu. It
has been stated that, if the detenu is allowed to stay free, that
will engender vulnerability in respect of maintaining the
public order. In his counter affidavit, the Opposite Party No.1
has contended that, the writ petition itself is misconceived and
there is no merit. It has been asserted in Paragraph-3 of the
counter affidavit filed by the Opposite Party No.1 as follows:
"The detaining authority (OP No.2), on the basis of
the materials available before him was subjectively
satisfied with regard to the involvement of the petitioner in
a number of criminal cases and the proximate event that
disrupted the public order, has passed the impugned order
of detention order, which has been approved and ultimately
confirmed by the state government (OP No.1). Hence, there
is no illegality and/or infirmity in the impugned orders
under challenge for which the writ petition is liable to be
dismissed."
In the said affidavit filed by the Opposite Party No.1,
the important dates have been shown in a table. For sake of
convenience, the said table is reproduced hereunder:
15.09.2022 Receipt of letter dated 14.09.2022 from District
Magistrate, Puri regarding detention of detenu on
08.09.2022.
20.09.2022 Approval of the detention order by the State
Government
20.09.2022 Reported to Ministry of Home Affairs, New Delhi
regarding detention and approval of the detention
order by the State Government
11.10.2022 Receipt of representation dated 06.10.2022 of the
detenu and parawise comments of the detaining
authority thereon, attached with the letter of District
Magistrate, Puri dated 10.10.2022
15.10.2022 Forwarding of a copy of the representation along
with parawise comments to Ministry of Home
Affairs, New Delhi
18.10.2022 Forwarding of order for rejection of the
representation of the detenu through the District
Magistrate, Puri
19.10.2022 Receipt of report and opinion of NSA Advisory
Board dated 18.10.2022
21.10.2022 Forwarding of a copy of the report and opinion of
NSA Advisory Board to Ministry of Home Affairs,
New Delhi
28.10.2022 Service of the Message dated 21.10.2022 containing
Information regarding rejection by Central
government to the detenu
01.11.2022 Confirmation of the detention order by the State
Government
02.12.2022 Receipt of request letter dated 30.11.2022 from
District Magistrate, Puri regarding extension of
detention period
06.12.2022 Approval of extension of detention period from 3
months to 6 months by the State Government
It is apparent from the said table that on 06.12.2022, the
detention of the detenu was extended from three months to six
months by the Opposite Party No.1. It has been asserted in
Paragraph-6 of the counter affidavit that, on being satisfied
subjectively, the detaining authority has passed the order of
detention, Annexure-1 to the writ petition under Sub-Section
(2) of Section 3 of NSA. The Opposite Party No.1 has further
stated that the words, "until further orders" have appeared in
the order of detention for purpose of confirmation under the
provision of Section 13 of NSA and for no other purpose.
According to the Opposite Parties No.1 and 2, the writ petition
deserved to be dismissed.
8. We have added Union of India, as the Opposite Party
No.3. On notice the Opposite Party No.3 has filed a separate
counter affidavit on 18.01.2023. They have stated that the
detaining authority and the Opposite Party No.1 sent the
representation of the detenu to the Opposite Party No.3. The
Opposite Party No.3 has stated that the Union Home Secretary
having carefully considered the materials on record, including
the order of detention, the grounds of detention, the
representation of the detenu and the comments of the
detaining authority thereon, came to the conclusion that the
detenu had failed to bring forth any material or grounds by his
representation to justify the revocation of the order of
detention in exercise of the powers provided to the Central
Government under Section 14 of NSA. After the rejection of
the said representation, the records of the consideration was
sent to the Joint Secretary, Home Department, Government of
India on 20.10.2022. The detenu was informed of the said
rejection by Wireless Message dated 21.10.2022 without any
delay.
9. Another counter affidavit has been filed by the
Opposite Party No.1 on 21.12.2022 almost in the similar line
of the counter affidavit filed by the Opposite Party No.2. We
have failed to persuade ourselves to find the rationale behind
filing of the subsequent counter affidavit on 21.12.2022.
However, the Opposite Party No.1 has contended in the
subsequent counter-affidavit that there is no legality and
infirmity in the order of detention which is under challenge.
As such, the writ petition is liable to be dismissed.
10. Mr. Sarangi, learned counsel for the Petitioner
has forcefully contended that for not supplying the report of
the Superintendent of Police, Puri as reflected in the order of
detention, the Petitioner has been deprived of making effective
representation against the order of detention. Mr. Sarangi,
learned counsel has referred to Article 22 of the Constitution
of India by which the protection against arrest and detention in
certain cases has been guaranteed. Clause (1) under Article 22
provides that no person who is arrested shall be detained in
custody without being informed, as soon as may be, of the
grounds for such arrest, nor shall he be denied the right to
consult, and to be defended by a legal practitioner of his
choice. So far as the preventive detention is concerned, it has
been clearly laid down that a person cannot be detained for a
longer period than three months unless an Advisory Board
consisting of persons who are, or have been, or are qualified to
be appointed as Judges of High Court has reported before the
expiration of the said period of three months that in its opinion
there is sufficient cause for such detention. Mr. Sarangi,
learned has placed emphasis on Clause (5) of Article 22 of the
Constitution of India. For purpose of reference, we would like
to reproduce Clause (5) of Article 22 of the Constitution
hereunder:
"When any person is detained in pursuance of
an order made under any law providing for
preventive detention, the authority making the order
shall, as soon as may be, communicate to such person
the grounds on which the order has been made and
shall afford him the earliest opportunity of making a
representation against the order."
According to Mr. Sarangi, learned counsel, the word
informed as appearing in Clause (1) of Article 22 of the
Constitution should mean informed comprehensively about the
materials and the grounds based on which any individual has
been detained. According to Mr. Sarangi, learned counsel, by
not supplying the report of the Superintendent of Police, Puri
which was considered as the core document by the detaining
authority, the Opposite Party No.2 has committed serious
infringement of Article 22 of the Constitution of India and
also of the provisions of NSA whereunder Section 8 provideds
that, when a person is detained in pursuance of a detention
order, the authority making the order shall, as soon as may
be, but ordinarily not later than five days and in exceptional
circumstances and for reasons to be recorded in writing, not
later than ten days from the date of detention, communicate to
him the grounds on which the order has been made and shall
afford him the earliest opportunity of making a representation
against the order to the appropriate Government. Sub-Section
(2) of Section 8 of NSA is very material in the context of the
present case. It provides that nothing in Sub-Section (1) shall
require the authority to disclose those facts which are
considered to be against the public interest. We may hasten to
add that no such ground has been adopted by the Opposite
Party No.2, that he did not disclose any material on the ground
of public interest and hence, we would infer that the materials
those were considered by him could have been disclosed to the
detenu. In this regard, Mr. Sarangi, learned counsel has
referred a few decisions of the Apex Court.
In Mohd. Alam and Ors. vs. State of West Bengal:
(1974) 4 SCC 463, the Apex Court had occasion to observe as
follows:
"14. Our democratic Constitution inhibits
blanket and arbitrary deprivation of a person's liberty
by authority. It guarantees that no one shall be
deprived of his personal liberty except in accordance
with procedure established by law. It 'further, permits
the State, in the larger interests of society, to so
restrict that fundamental right that a reasonable, but
delicate balance is maintained on a legal fulcrum
between individual liberty and social security. The
slightest deviation from or displacement or infraction
or violation of the legal procedure symbolised in that
fulcrum, upsets the balance, introduces error and
aberration and vitiates its working. This symbolic
balance therefore has to be worked with utmost care
and attention. Viewed in that perspective, the
requirement as to the filing of the counter-affidavit by
the proper person cannot be treated as an empty
formality. This obligation stems from the well-settled
principle that once a Rule Nisi is issued on habeas
corpus motion, by the Court, the onus is on the State to
show that the liberty of the detenu has been taken
away in accordance with procedure established by
law, and that the safeguards provided in Article 22
and in the Act, have not been transgressed or
bypassed."
A part of the report in Mohd. Alam (supra) has been
highlighted by Mr. Sarangi, learned counsel. For that reason,
we would like to reproduce the Paragraph-19, which has been
pressed by Mr. Sarangi, learned counsel in order to buttress
his contention:
"19. No body is born a criminal, much less a
habitual or "veteran" criminal. It takes time for one to
become so. The adjective "veteran" which is
synonymous with "habitual" implies a long course of
recurring or persistent criminal behavior or repeated
commission of crime. Surely, all the information
received by the District Magistrate/the Government,
about the repeated criminal activities of the detenu
had contributed towards the subjective satisfaction of
the detaining authority. It will not be extravagant to
say that but for the detenu being in the opinion of the
detaining authority a "veteran" or habitual copper
wire criminal, the District Magistrate might not have
taken the impugned action. Admittedly, the whole of
(his material or "reliable information" about the
"antisocial" and "prejudicial activities" of the detenu
that led to his detention, was not communicated to
him. This information which was withheld was not
claimed to be privileged under Clause (6) of Article
22. The non-communication of that material was
violative of Article 22(5) of the Constitution and the
Act inasmuch as it did not intimate to the detenu the
full grounds or material to enable him to make an
effective representation. The detention is thus illegal.
We, therefore, allow this petition, set aside the
detention order and direct that the petitioner be set at
liberty forthwith.
[Emphasis added]
Mr. Sarangi, learned counsel has also placed his
reliance on Ichhu Devi Choraria vs. Union of India (UOI)
and Ors: (1980) 4 SCC 531. In that report, the Apex Court has
observed inter alia having referred to Khudiram Das vs. The
State of West Bengal and Ors: (1975) 2 SCC 81 that the
Constitutional imperatives enacted in this article (Article 22,
Clause 5) are two-fold: (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
are the barest minimum safeguards which must be observed
before an executive authority can be permitted to preventively
detain a person and thereby drown his right of personal
liberty in the name of public good and social security.
11. It has been further observed in Ichhu Devi
Choraria (supra) as follows:
"Now it is obvious that when Clause (5) of
Article 22 and Sub-section (3) of Section 3 of the
COFEPOSA Act provide that the grounds of detention
should be communicated to the detenu within five or
fifteen days, as the case may be, what is meant is that
the grounds of detention in their entirety must be
furnished to the detenu. If there are any documents,
statements or other materials relied upon in the
grounds of detention, they must also be communicated
to the detenu, because being incorporated in the
grounds of detention, they form part of the grounds
and the grounds furnished to the detenu cannot be said
to be complete without them. It would not therefore be
sufficient to communicate to the detenu a bare recital
of the grounds of detention, but copies of the
documents, statements and other materials relied upon
in the grounds of detention must also be furnished to
the detenu within the prescribed time subject of course
to Clause (6) of Article 22 in order to constitute
compliance with Clause (5) of Article 22 and Section
3, Sub-section (3) of the COFEPOSA Act. One of the
primary objects of communicating the grounds of
detention to the detenu is to enable the detenu, at the
earliest opportunity, to make a representation against
his detention and it is difficult to see how the detenu
can possibly make an effective representation unless
he is also furnished copies of the documents,
statements and other materials relied upon in the
grounds of detention. There can therefore be no doubt
that on a proper construction of Clause (5) of Article
22 read with Section 3, Sub-section (3) of the
COFEPOSA Act, it is necessary for the valid
continuance of detention that subject to Clause (6) of
Article 22 copies of the documents, statements and
other materials relied upon in the grounds of detention
should be furnished to the detenu alongwith the
grounds of detention or in any event not later than five
days and in exceptional circumstances and for reasons
to be recorded in writing, not later than fifteen days
from the date of detention. If this requirement of
Clause (5) of Article 22 read with Section 3, Sub-
section (3) is not satisfied the continued detention of
the detenu would be illegal and void."
[Emphasis added]
Mr. Sarangi, learned counsel has also referred to
Sailendra Kumar Jora v. District Magistrate & Two Ors:
(2007) 36 OCR - 833, where it has been held that, the grounds
of detention were based on the report of Superintendent of
Police, Keonjhar and the said report had not been furnished to
the detenu for filing his representation. It was held that non-
supply of the said report affected the right to representation by
the detenu prejudicially. On the ground of the non-supply of
the report, the order of preventive detention was quashed in
Sailendra Kumar Jora (supra). In that report, Icchu Devi
Choraria (supra) was relied in respect of the strict compliance
of the laid down procedures and to observe the constitutional
imperative. No doubt, 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." [extract from
Icchu Devi Choraria (supra)]. Another decision of this Court
in Pramila Bastia v. State of Orissa and Ors: 1984 Crl.L.J.
1402 has been referred. It has been observed by this Court
thus:
"The detenu was deprived of his right to submit
an effective representation against the order of
detention due to failure on the part of the authorities to
supply all the materials, we are constrained to hold
that the contention has substantial force. It is well
settled that all documents, statements and other
materials incorporated in the grounds by reference
and which might have influenced the mind of the
detaining authority, in arriving at the requisite
subjective satisfaction must be furnished to the detenu
(Abdul Azij v. Delhi Administration: AIR 1981 SC
1389). Failure to comply with this requirement would
amount to breach of the mandate contained in Article
22(5) of the Constitution. It is also well settled that in
preventive detention jurisprudence whatever little
safeguards the Constitution and the enactment
authorising such detention provide assume utmost
importance and must be strictly adhered, to. A specific
averment has been made in the additional affidavit
filed by the petitioner that the report submitted by the
Superintendent of Police, Cuttack was considered by
the detaining authority (O.P. No. 2) while passing the
order of detention but no copy of the same was
supplied to the detenu. Though the detaining authority
has personally sworn the affidavits in reply to the writ
petition this averment has not been expressly denied.
He has neither denied the existence of the report nor
has he stated that the same was not considered by him
while passing the order of detention. Indeed, from the
records submitted by the learned Additional
Government Advocate, we find that the report of the
Superintendent of Police is available in the file. In
these circumstances, it is difficult for us to accept the
contention of the learned Additional Government
Advocate that contents of the report in question did not
weigh with the detaining authority while passing the
order of detention. Accordingly, we must hold that the
petitioner was prejudiced for non-supply of the report
of the Superintendent of Police, Cuttack, in making an
effective representation against the order of detention.
Consequently the order of detention is vitiated on that
ground."
Reference has been made to Kapa @ Somanath
Sahoo v. State of Odisha and Others: (2015) 61 OCR-899,
where it has been held as under:
"5. It is further submitted on behalf of the
petitioner that the aforesaid Constitutional Bench
judgment in the case of Atma Ram Shridhar Vaidya
(supra) was relied upon an approved by the Hon'ble
Supreme Court in a later Constitutional Bench
judgment in the case of Naresh Chandra Ganguli for
Shri Ram Prasad Das v. The State of West Bengal
and others, A.I.R. 1959 Supreme Court 1335. Learned
counsel for the petitioner placed further reliance on a
judgment of the Hon'ble Gujarat High Court in the
case of Parshottam Dahyabhai Chunara v. State of
Gujarat and others, 1988(2) Crimes 432, in which a
Division Bench of the Hon'ble Gujarat High Court
placing reliance on the aforesaid two judgments
rendered by the Hon'ble Supreme Court on similar
circumstances as have arisen for consideration in the
present case was pleased to direct quashing of "the
order of detention" on a finding that "the grounds of
detention" were framed four days after "the order of
detention" was passed and executed.
6. Learned counsel for the State submitted that
no prejudice is caused to the interest of a detenu even
if "the grounds of detention" are prepared by the
detaining authority after passing of "the order of
detention" since the petitioner-detenu had a right to
make representation to the State as well as to the
Board. Learned counsel for the State further submitted
that the petitioner's detention was approved by the
State as well as by the State Board and such approval
was granted after affording the petitioner-detenu with
an opportunity to make a representation as well as
after affording him an opportunity of hearing.
7. On the basis of the arguments advanced by
the learned counsel for the respective parties as noted
hereinabove, we are of the considered view that the
contention advanced by the learned counsel for the
State has to be out-rightly rejected. The scope of
Article 22(5) of the Constitution of India has been
clearly delineated in the judgment of the
Constitutional Bench of the Hon'ble Supreme Court in
the case of The State of Bombay v. Atma Ram
Shridhar Vaidya (supra) and referred to in
affirmation by a subsequent Constitutional Bench of
the Hon'ble Supreme Court in the case of Naresh
Chandra Ganguli for Shri Ram Prasad Das v. The
State of West Bengal and others (supra). The Hon'ble
Supreme Court has determined the right under Article
22(5) as having two limbs. In the present case, we are
required to deal with the second limb i.e. the
mandatory requirement that "the grounds of detention"
must be in existence when an order of detention is
passed. Absence of "the grounds of detention" on the
date on which "the order of detention" is passed
clearly is violative of the rights of a detenu vested
under Article 22(5) of the Constitution of India. Apart
from the above, we are in respectful agreement with
the views expressed by the Hon'ble Gujarat High
Court in the case of Parshottam Dahyabhai Chunara
(supra) and we are also of the considered view that the
fact situation that arise for consideration in the
present case, are absolutely similar to the facts that
arose for consideration by the Hon'ble Gujarat High
Court in the aforesaid judgment."
[Emphasis added]
This decision has been referred in support of the
contention that, at the time of the passing of the order of
detention, in the case in hand, the grounds of detention were
not available with the Opposite Party No.2, as those were
prepared afterwards.
Mr. Sarangi, learned counsel has placed his further
reliance on a decision of the Allahabad High Court in Uma
Shanker Verma vs. Superintendent, Central Jail and Ors:
1989 SCC Online All 379, in which it has been held thus:
"5. The next contention of the learned counsel for the
petitioner is that the copy of the proposal submitted by
the sponsoring authority for an order being passed
against the petitioner under Section 3(2) of the
COFEPOSA was not supplied to him which, seriously
affected the right guaranteed to him under Article 22
of the Constitution for making an effective
representation against the order of detention before
the appropriate authority. It is contended that the
lapse on the part of the opposite parties in not
supplying the copies of the aforesaid document would
vitiate the order.
6. The plea regarding non-supply of the copy of the
proposal made by the sponsoring authority is
contained in para 23 of the writ petition which reads
as under:--
* * *
7. This paragraph of the writ petition has been dealt
with in para 25 of the counter-affidavit of Sri A. K.
Batabyal, Joint Secretary to Government of India,
Ministry of Finance, Department of Revenue, New
Delhi, which reads as under:
"25. That para 23 of the writ petition is incorrect.
The proposal itself was not relied upon for passing
the order of detention against the petitioner, as such
it was not relevant document to be supplied to the
petitioner. Moreover, it is a secret document,
cannot be supplied to the detenu."
8. In view of the above pleadings, the question which
crops up for consideration is whether or not the
proposal submitted by the sponsoring (custom)
authority was a relevant document and whether or not
it was considered by the detaining authority for being
subjectively satisfied that the making of the order of
detention was necessary to be passed against the
petitioner for preventing him from carrying out the
objectionable activities.
9. The question whether the proposal submitted by the
sponsoring authority is a relevant document has
already been considered and decided in several writ
petitions.
10. This Court in (HC) Writ Petn. No. 9139 of 1988,
(Amar Nath v. Union of India) decided on 15-3-1989
has already held the proposal submitted by the
sponsoring authority to be a relevant document the
non-supply of which would vitiate the order of
detention as it would deny the detenu the right of
making an effective representation guaranteed to him
under Article 22 of the Constitution.
11. The Division Bench, which decided Amar Nath's
case (supra), relied upon two earlier decisions of this
Court in Jagdish v. State of U.P. (HC) Writ Petn. No.
1607 of 1987 decided on 8-7-1987 and Harish Gandhi
alias Kaku Mulzamal v. State of U.P. (HC) Writ Petn.
No. 16562 of 1988 (decided on 25-1-1989 at
Allahabad).
12. We had the occasion to consider the above
decisions in (HC) Writ Petn. No. 3453 of 1989
(Aswani Kumar v. Supdt. Central Jail, Naini,
Allahabad) decided on 28-7-1989 and we were also of
the opinion that the proposal submitted by the
sponsoring authority was a relevant document and
that it was necessary, according to the constitutional
mandate, to supply a copy of that document to the
person against whom the detention order was passed.
13. It is contended by the learned counsel for the
opposite parties that the proposal submitted by the
sponsoring authority having not been relied upon by
the detaining authority, was not a relevant document
and that it was not incumbent upon the detaining
authority to supply a copy of this document to the
petitioner.
14. It is, no doubt, mentioned in the counter-affidavit
that the proposal itself was not relied upon while
passing the order of detention against the petitioner
but it is not possible for us to place reliance on this
plea for the reasons which are herein below
mentioned.
15. The entire machinery under the COFEPOSA was
moved by the sponsoring (custom) authority by making
a proposal to the Central Government that an order of
detention may be passed against the petitioner. The
proposal with which were annexed the documents in
support of the facts set out therein, was, admittedly,
placed before the detaining authority, which, it is
difficult to believe, would have considered only the
documents annexed with the proposal and not the
proposal itself. The proposal as also the documents
were placed before the detaining authority for his
subjective satisfaction that an order of detention was
necessary to be passed against the petitioner. It would
be against human habit or human psychology to say,
assert, plead, argue, or, for that matter, to hold that
the proposal was not considered or read and that only
the documents annexed thereto were read by the
detaining authority who, we are constrained to
observe, would come to know of the facts only after
going through the narrative or the statement of facts
set out in the proposal with which were annexed the
documents to show for his satisfaction that the
allegations made against the petitioner were prima
facie correct."
[Emphasis added]
According to Mr. Sarangi, learned counsel, the
Superintendent of Police is the sponsoring authority for
detention of the detenu. Therefore, his report to the
detaining authority is highly material to inquire into the
elements of satisfaction. Thus, denial to provide the report
of the Superintendent of Police, Puri is prejudicial to the
right of the detenu to file an effective representation. Mr.
Sarangi, learned counsel has relied a decision of the Apex
Court in Mohinuddin alias Moin Master v. District
Magistrate, Beed and others: (1987) 4 SCC 58, in which
the Apex Court has determined the points (i) on
consequence of inordinate and unexplained delay in
disposal of the detenu's representation, (ii) who is the
person competent to file the counter affidavit on behalf of
the State and (iii) the detenu's representation made to the
State Government must be disposed of expeditiously
without waiting for the opinion of the Advisory Board,
otherwise continued detention of the detenu will become
illegal and unconstitutional. In Mohinuddin alias Moin
Master (supra), the Apex Court has observed that it is
sufficient for the detenu to state that detention order is
illegal and that would be the sufficient for intervention or
issuance of writ of habeas corpus, even if the detenu has
not laid down the grounds of challenge elaborately. The
said principle has been succinctly laid down in the
following passage:
"4. It was an improper exercise of power on
the part of the High Court in disallowing the writ
petition on the ground of imperfect pleadings.
Normally, writ petitions are decided on the basis of
affidavits and the petitioner cannot be permitted to
raise grounds not taken in the petition at the hearing.
The same rule cannot be applied to a petition for grant
of a writ of habeas corpus. It is enough for the detenu
to say that he is under wrongful detention, and the
burden lies on the detaining authority to satisfy the
Court that the detention is not illegal or wrongful and
that the petitioner is not entitled to the relief claimed.
this Court on more occasions than one has dealt with
the question and it is now well-settled that it is
incumbent on the State to satisfy the Court that the
detention of the petitioner/detenu was legal and in
conformity not only with the mandatory provisions of
the Act but also strictly in accord with the
constitutional safeguards embodied in Article 22(5). In
return to a rule nisi issued by this Court or the High
Court in a habeas corpus petition, the proper person
to file the same is the District Magistrate who had
passed the impugned order of detention and he must
explain his subjective satisfaction and the grounds
therefor; and if for some good reason the District
Magistrate is not available, the affidavit must be
sworn by some responsible officer like the Secretary or
the Deputy Secretary to the Government in the Home
Department who personally dealt with or processed
the case in the Secretariat or submitted it to the
Minister or other Officer duly authorised under the
Rules of Business framed by the Governor under
Article 166 of the Constitution to pass orders on behalf
of the Government in such matters: Niranjan Singh v.
State of Madhya Pradesh: (1972) 2 SCC 542,
Habibullah Khan v. State of West Bengal: (1974) 4
SCC 275, Jagdish Prasad v. State of Bihar: (1974) 4
SCC 455, Mahd. Alam v. State of West Bengal :
(1974) 4 SCC 463"
12. Mr. J. Katikia, learned Additional Government
Advocate has produced two sets of records, one from the
Office of the Collector, Puri and other from the Home
Department Government of Odisha in respect of detention
of the detenu under the sealed cover. We have opened the
sealed envelopes for purpose of perusal of those records.
The relevant materials from such records would be referred
in the appropriate place. Mr. Katikia, learned Additional
Government Advocate has submitted that the challenge
against the detention order is frivolous in nature, in as
much as, the detaining authority or the Advisory Board has
thoroughly examined the materials. On such examination,
the order of detention, Annexure-1 to the writ petition, was
passed by the District Magistrate Puri and the Advisory
Board did not find any procedural infirmity. Mr. Katikia,
learned Additional Government Advocate has submitted
that the detenu is a dreaded and habitual offender, who has
been trying to spread "the tentacle of his criminal activities
by threatening the public order". In the grounds of
detention, a brief note of the criminal activities of the
detenu has been provided. From reading of those materials
any prudent person would be prima facie satisfied that the
detenu and his associates had been threatening the business
people by using illegal arms. They were indulging in
extortion. As consequence of their activities, nobody could
muster courage to protest against such activities. By
unloosening a reign of terror, the detenu and his associates
have created such a situation that some inhabitants of that
locality fled away from that area. The names of his
associates have been disclosed in the grounds of detention.
In the grounds of detention, it has been specifically
mentioned that the detenu's very presence evokes panic in
the minds of law abiding citizen and the local people are
mortally afraid to lodge any complaint against him or his
criminal associates. Though a series of cases have been
lodged against him, those did not bring any impact in
deterring the detenu from continuing with criminal anti-
social activities. Such activities of the detenu are
continuing unabated since 2001 throwing open challenge to
the law enforcing agencies. Mr. Katikia, learned Additional
Government Advocate has submitted that fundamentally
two objections have been raised by the detenu in order to
nourish the challenge against the order of detention. Those
are:
(i) Non-supply of the report of the
Superintendent of Police, Puri, and
(ii) The grounds of detention were prepared after
the order of detention was issued. Hence, those grounds of
detention cannot be treated as the materials which were
considered by the detaining authority for passing the order
of detention.
Mr. Katikia, learned Additional Government
Advocate has submitted that all the materials of the report
of Superintendent of Police Puri, which was taken into
consideration by the detaining authority for issuing the
order of detention against the detenu have been reflected in
the grounds of detention and as such, no prejudice has been
caused to the detenu in making an effective representation
against the order of detention. Mr. Katikia, learned
Additional Government Advocate has having referred the
representation of the detenu stated that the detenu has
raised the question of non-supply of the materials which
had been relied upon by the detaining authority for passing
the detention order. That apart, it has been contended in the
representation that "the grounds of detention served on the
detenu does not contained any date on which it was either
prepared or served which gives ample scope of
manipulation at subsequent stage. Mr. Katikia, learned
Additional Government has fairly submitted that some of
the cases where the detenu had been acquitted, have been
considered for passing the order of detention. That apart, it
has been urged by the detenu that while considering the
entries in the Station Diary, the detaining authority had
failed to appreciate that those are mere allegations. Even,
no prima facie evidence is available with the police
authority. Mr. Katikia, learned Additional Government
Advocate has submitted that the detenu has raised an
objection as regards the subjective satisfaction of the
detaining authority by stating that the detention order has
not been passed independently and it has been passed
based on direction of the Home Department and stale
cases as well as the cases where detenu has been acquitted.
Mr. Katikia, learned Additional Government Advocate has
submitted with emphasis that the materials as relied on at
the time of making of the detention order, have been
substantially extracted in the grounds of detention. Hence,
it cannot be stated that non-supply of the report of the
Superintendent of Police, Puri has caused prejudice to the
detenu in making an effective representation. Mr. Katikia,
learned Additional Government Advocate has referred
Paragraph-4 of the counter affidavit filed by the Opposite
Party No.1 to show the sequence of event, as reproduced
by us [See Page-11].
In order to repel the contention of the detenu, in
respect of non-supply of the report of the Superintendent of
Police, Puri, Mr. Katikia, learned Additional Government
Advocate has submitted that Article 22 (5) of the
Constitution of India does not obligate the State to supply
all reports/records along with grounds of detention. The
relevant part of the Articles 22 (5) and (6) of the
Constitution of India are extracted below, for purpose of
better reference:
(5) When any person is detained in pursuance of an
order made under any law providing for preventive
detention, the authority making the order shall, as soon
as may be, communicate to such person the grounds on
which the order has been made and shall afford him the
earliest opportunity of making a representation against
the order
(6) Nothing in clause ( 5 ) shall require the authority
making any such order as is referred to in that clause
to disclose facts which such authority considers to be
against the public interest to disclose.
13. Before we proceed further, we would like to
record that for non-disclosure of the report of the
Superintendent of Police, Puri, the Opposite Parties did not
resort to Article 22 (6) of the Constitution of India and as
such, it has become a case of non-disclosure of the facts,
unrelated to the public interest.
14. To buttress his contention Mr. Katikia, learned
Additional Government Advocate has placed his reliance
on a few decisions of the Apex Court.
Reference has been made to Beni Madhob Shaw
alias Benia vs. The State of West Bengal: (1974) 3 SCC
481 where it has been held that it is not required to disclose
the source of information along with the grounds of
detention. In Beni Madhab Shaw (supra), it has been
further observed as follows:
"......It has not been shown on behalf of the petitioner
that it was necessary under the law to disclose the
sources of the information or the exact words of the
information so long as the activities which formed the
foundation of the impugned order were actually
disclosed to the petitioner. Under Section 8 of the
aforesaid Act only grounds of order of detention are
required to be disclosed to the persons affected by
such order. Those grounds in the present case were
actually disclosed. They are neither vague nor
ambiguous. They furnish adequate information for
enabling the petitioner to make effective
representation against his detention. It was not
contended and indeed it could not be contended that
those grounds are not germane to the purpose of
detention under the aforesaid Act."
[Emphasis added]
We have also noted that in the said report there is
no reference to the right of the detenu as guaranteed under
Article 22 (5) of the Constitution of India.
15. Mr. Katikia, learned Additional Government
Advocate has also placed his reliance on State of Punjab
and Ors. vs. Jagdev Singh Talwandi : (1984) 1 SCC 596
in order to demonstrate that details of the sources of
information are not required to be furnished to the detenu.
For purpose of reference the following passages are
reproduced hereunder:
"19. It was further argued by the learned
Counsel that the detaining authority should have
disclosed the evidence on the basis of which the order
of detention was passed because, in the absence of
knowledge of such evidence, the respondent could not
have made an effective representation against the order
of detention. There is no substance in this contention. It
is not the law that the evidence gathered by the
detaining authority against the detenu must also be
furnished to him.
20. In Beni Madhob Shaw v. The State of West
Bengal:, it was argued on behalf of the detenu that the
details of the activities attributed to him Were not
disclosed to him, as a result of which his right to make
a representation to the Government was seriously
prejudiced. It was held by this Court that since the
activities forming the grounds of detaining were
disclosed to the detenu in clear terms and since such
disclosure furnished adequate information to the
detenu to enable him to make an effective
representation against his detention, the non-disclosure
of sources of information or the exact words of the
information which formed the foundation of the order
of detention could not be complained of.
21. In Har Jas Dev Singh v. State of Punjab, it was
held that the conclusions drawn from the available
facts constitute 'the grounds' and that the ground must
be supplied to the detenu. The Court observed that the
detenu is not entitled to know the evidence nor the
source of the information : What must be furnished to
him are the grounds of detention and the particulars
which would enable, him to make out a case, if he can,
for the consideration of the detaining authority.
22. In Vakil Singh v. State of Jammu and Kashmir:
(1975) 3 SCC 545, it was held that since the basic facts,
as distinguished from factual details were incorporated
in the material which was supplied to the detenu,
nothing more was required to be intimated to him in
order to enable him to make an effective
representation.
23. These cases show that the detenu is not entitled to
be informed of the source of information received
against him or the evidence which may have been
collected against him as, for example, the evidence
corroborating that the report of the C.I.D. is true and
correct. His right is to receive every material particular
without which a full and effective representation cannot
be made. If the order of detention refers to or relies
upon any document, statement or other material, copies
thereof have, of course, to be supplied to the detenu as
held by this Court in Ichhu Devi Choraria v. Union of
India. That question does not arise here since no such
thing is referred to or relied upon in the first ground of
detention. Indeed the furnishing of the C.I.D. report, of
which a truncated extract was furnished to the
respondent, was a superfluous exercise in the light of
the facts of the instant case.
[Emphasis added]
A reference has been made to State of Rajasthan
and another v. Shamsher Singh: 1985 (supp) SCC 416
wherein it has been observed having referred to Beni
Madhab Shaw (supra) and Vakil Singh (supra) that the
detenu is not entitled to be informed of the source of
information received against him or the evidence which
may have been collected against him, as for example, the
evidence corroborating that the report of the C.I.D. is true
and correct. The detenu's right is to receive every material
particular without which a full and effective representation
cannot be made. It has been approvingly stated that, if the
order of detention refers to or relies upon any document,
statement or other material, copies thereof have, of course,
to be supplied to the detenu following the observation
made in Ichhu Devi Choraria (supra). It has been further
added in Shamsher Singh (supra) as under:
"In view of what has been said by the
Constitution Bench, there was no force in the
submission of the respondent that there has been an
infraction of the law in not supplying the respondent
copies of the reports or disclosing the source thereof.
The respondent had actually been given in the grounds
all material details necessary for making an effective
representation. The fourth ground accepted by the High
Court in support of its order is also not tenable in law.
As all the grounds accepted by the High Court for its
conclusion are not sustainable for reasons discussed
above, the order of the High Court quashing the
detention is not supportable."
Thereafter, Mr. Katikia, learned Additional
Government Advocate has proceeded to refer the principle
as laid down in Sundeep Kumar Bafna vs. State of
Maharashtra and Ors: (2014) 16 SCC 623. It has been
held in Sundeep Kumar Bafna (supra) as follows:
"19. It cannot be over-emphasised that the discipline
demanded by a precedent or the disqualification or
diminution of a decision on the application of the per
incuriam rule is of great importance, since without it,
certainty of law, consistency of rulings and comity of
Courts would become a costly casualty. A decision or
judgment can be per incuriam any provision in a
statute, rule or Regulation, which was not brought to
the notice of the Court. A decision or judgment can
also be per incuriam if it is not possible to reconcile
its ratio with that of a previously pronounced
judgment of a Coequal or Larger Bench; or if the
decision of a High Court is not in consonance with the
views of this Court. It must immediately be clarified
that the per incuriam rule is strictly and correctly
applicable to the ratio decidendi and not to obiter
dicta. It is often encountered in High Courts that two
or more mutually irreconcilable decisions of the
Supreme Court are cited at the Bar. We think that the
inviolable recourse is to apply the earliest view as the
succeeding ones would fall in the category of per
incuriam."
The said passage has been relied on Mr. Katikia,
learned Additional Government Advocate, but he did not
state which of the decisions as relied on by the counsel for
the detenu falls within the bracket of per incuriam. If there
is conflict between the two decisions, the earlier decision,
which has not been appreciated, will occupy the position of
dominance.
16. Mr. Katikia, learned Additional Government
Advocate has placed his reliance on A.K. Roy v. Union of
India: (1982) 1 SCC 271 to contend that the grounds of
detention shall ordinarily be filed not later than 5 days, but
in exceptional circumstances and for reasons to be recorded
in writing, not later than 10 days from the date of
detention, in order to afford the earliest opportunity of
making a representation to the detenu, to the appropriate
Government. In A.K. Roy (supra), while dealing with the
challenge against NSA, it has been observed inter alia that
the objection in respect of the provision contained in
Section 8(1) of the NSA is that it has unreasonably allowed
the detaining authority to furnish the grounds of detention
to the detenu as late as five days and in exceptional cases
10 days after the date of detention. It has been further
observed that the said argument overlooks that the primary
requirement of Section 8(1) is that the authority making the
order of detention shall communicate the grounds of
detention to the detenu "as soon as may be". The normal
rule therefore is that the grounds of detention must be
communicated to the detenu without avoidable delay. It is
only in order to meet the practical exigencies of
administrative affairs that the detaining authority is
permitted to communicate the grounds of detention not
later than five days ordinarily, and not later than 10 days if
there are exceptional circumstances. If there are any such
circumstances, the detaining authority is required by
Section 8(1) to record its reasons in writing. Thereafter, it
has been held that the said provision is not open to any
objection. A.K. Roy (supra) has been referred to us to
show that the grounds of objection can be prepared within
that timeframe and communicated to the detenu. Mr.
Katikia, learned Additional Government Advocate has also
placed his reliance on Ashok Kumar vs. Delhi
Administration and Ors.: (1982) 2 SCC 403. In Ashok
Kumar (supra), the Apex Court having relied on A.K. Roy
(supra) has observed that, under our constitutional system
it is not the law that, no person shall be detained in
pursuance of an order made under law providing for
preventive detention without being informed of the
grounds for such detention. The law is that the detaining
authority must soon as may be, or as soon as practicable,
communicate to the detenu the grounds on which the order
of detention has been made. That period has been specified
by Section 8 of the NSA. The period as prescribed shall be
from 5 to 10 days depending upon the facts and
circumstances of each case.
17. Both A.K. Roy (supra) and Ashok Kumar (supra)
have been pressed into service to contend that even the
grounds of detention can be prepared even subsequent to
the order of detention is passed.
Is there is any distinction between availability of
the grounds of detention and preparation of the grounds of
detention ? If Ashok Kumar (supra) is read keenly, it can
be gathered that what is to be communicated to the detenu
is the grounds on which the order of detention has been
made. Therefore, the grounds of detention, as would be
communicated to the detenu, shall be prepared by the
detaining authority before passing the order of detention.
18. Having appreciated the rival contentions of the
counsel for the parties and the records as produced, we
would like to reiterate that in Khudiram Das (supra), it has
been held that, "the basic facts and material particulars,
which are the foundation of the order of detention, will
also be covered by the word 'grounds' within the
contemplation of Article 22(5) and Section 8, and are
required to be communicated to the detenu unless their
disclosure is considered by the authority to be against the
public interest." It has been further observed in Khudiram
Das (supra) that "this has always been the view
consistently taken by this Court in a series of decisions." In
Khudiram Das (supra), the Apex Court had occasion to
weigh the consequences of non-supply of the grounds of
detention, including the materials those have been relied
on, as follows:
"But if the grounds of detention are not
communicated to him how can he make an effective
representation? The opportunity of making a
representation would be rendered illusory. The
communication of the grounds of detention is,
therefore, also intended to subserve the purpose of
enabling the detenu to make an effective
representation. If this be the true reason for
providing that the grounds on which the order of
detention is made should be communicated to the
detenu, it is obvious that the 'grounds' mean all the
basic facts and materials which have been taken into
account by the detaining authority in making the
order of detention and on which, therefore, the order
of detention is based."
[Emphasis added]
Apparent it is that, the observation in Shamsher Singh
(supra) is moderately in conflict with the decision of Ichhu
Devi Choraria (supra) and Khudiram Das (supra).
19. It can be culled out from the above discussion
that two grounds as raised to challenge the order of
detention dated 08.09.2022, Annexure-1 to the writ
petition, are (i) Non-supply of the report of the
Superintendent of Police, Puri is violative of Article 22 (5)
of the Constitution of India, as that has prejudicially
affected the detenu's right to make an effective
representation under Section 8 of NSA and (ii) the grounds
of detention were prepared subsequent to the passing of the
order of detention and as such, those grounds cannot be
treated as the grounds of the detention. Before we proceed
further, we would like to refer to the order of detention
dated 08.09.2022 as it has recorded as follows:
"....after perusing the records and material facts
submitted by the Superintendent of Police, Puri, I
applied my mind judiciously and satisfied that in order
to prevent Papu @ Dhirendranath Baral aged about 45
years, S/o. Biswanath Barala, Dhanakuti Sahi, PS- Puri
Town, Dist. Puri who is in jail custody in the District
Jail, Puri since 23.08.2022 and subsequently, he has
been shifted to Special Jail, Bhubaneswar to maintain
the public order."
Having recorded thus, the District Magistrate,
Puri directed that the detenu be detained in the Special Jail,
Bhubaneswar until further order in exercise of his power as
conferred by Sub-Section (2) of Section 3 of NSA. From
the passage as reproduced from the order dated 08.09.2022,
it is apparent that the records and material facts as
described by the Superintendent of Police, Puri were
considered as the foundation for making the order of
detention. There are two parts in the report of the
Superintendent of Police, Puri. We have verified the report
of the Superintendent of Police, Puri. The said report is
divided in two parts. One part relates to the
fact/information of the Superintendent of Police, which has
been taken into consideration while making the said order
and the other part refers to the records relating to the
various cases in which the detenu is incriminated. The facts
and the opinion as disclosed in the report of the
Superintendent of Police, Puri, have been considered by the
detaining authority while making the order of detention,
Annexure-1 to the writ petition. Hence, the said report
containing the facts, records and the opinion comes within
the ambit of the grounds as referred to in Clause (5) of
Article 22 of the Constitution of India and Section 8 of
NSA, in as much as the order of detention has been made
on the basis of the said report and the fact of such
consideration has been reflected in the order of detention
itself. Hence, the denial to supply a copy of that report has
affected prejudicially the right of the detenu in making
effective representation against the order of detention. In
Tushar Thakker v. Union of India : 1980 CriLJ 1492,
which has referred in Kirit Kumar Chaman Lal Kundaliya
vs. Union of India and Ors: (1981) 2 SCC 437, it has been
observed thus:
"This Court has repeatedly held that the detenu has a
constitutional right under Article 22(5) to be
furnished with copies of all the materials relied upon
or referred to in the grounds of detention, with
reasonable expedition."
It has been observed in Kirit Kumar Chaman Lal
Kundaliya (supra) as follows:
".....it is absolutely clear to us that whether the
documents concerned are referred to, relied upon or
taken into consideration by the detaining authority
they have to be supplied to the detenu as part of the
grounds so as to enable the detenu to make an
effective representation immediately on receiving the
grounds of detention. This not having been done in the
present case the continued detention of the petitioner
must be held to be void."
[Emphasis added]
The said observation, according to us, has been
made in perfect consonance with the law stated in
Khudiram Das (supra), the relevant part of which reads as
under:
"The Constitutional imperatives enacted in this
article are two-fold: (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
are the barest minimum safeguards which must be
observed before an executive authority can be
permitted to preventively detain a person and thereby
drown his right of personal liberty in the name of
public good and social security."
20. In view of the decisions as referred above at the
instance of the learned counsel for the parties and what has
been observed by us on interpretation of Clause (5) of
Article 22 of the Constitution of India, we are persuaded to
hold that the non-supply of the report of the Superintendent
of Police, Puri, which was the foundation of making the
order of detention has prejudicially affected the detenu and
hence, the said order of detention is liable to be declared
void and accordingly, we hold that the detention order
dated 08.09.2022, Annexure-1 to the writ petition is void.
As consequence of the above declaration, the subsequent
orders of extension are also liable to be set aside. It is
ordered accordingly.
21. So far as the other question relating to
preparation and availability of grounds at the time of
making the order is concerned, we do not find any
reference in both the records, as produced before us, as to
when the grounds of detention were prepared by the
detaining authority. As such, the contention of Mr. Sarangi,
learned counsel that it has to be deemed that the grounds of
detention was prepared on 12.09.2022, when those grounds
of detention, Annexure-3 to the writ petition, were served
on the detenu. This question assumes importance, in as
much as, it delves into the aspect whether the grounds of
detention which were served to the detenu are the grounds
which had been considered by the detaining authority. The
procedural propriety and fairness demand that the grounds
of detention shall be prepared before making the order of
detention, in as much as, those grounds of detention, if not
served with the order of detention, will be served to the
detenu as soon as possible. But, if it is found that there is
no record reflecting that the grounds of detention were
prepared before the making of the order, it cannot be held
that those grounds were the basis of making the said order
of detention. In such circumstances, the grounds of
detention is rendered irrelevant. Those grounds of
detention cannot be considered as the grounds based on
which the detaining authority had passed the impugned
order of detention. We would further observe that in that
event the order of detention is susceptible to interference. It
may be noted that no record is produced to show the time
when the grounds of detention were prepared or whether
those grounds of detention were at all considered by the
detaining authority while making the order of detention.
We are not concerned with the source of information, but
we are definitely concerned with the time line of formation
of the grounds of detention which were considered by the
detaining authority, as those records and facts fall within
the ambit of Clause (5) of Article 22 of the Constitution of
India.
22. As corollary of the above observations, the
detenu is entitled to be released forthwith, if he is not
wanted in any other case. We direct the release of the
detenu in the aforementioned term.
23. In the result, this writ petition stands allowed.
24. The records as produced by Mr. Katikia, learned
Additional Government Advocate be returned under sealed
cover.
25. No order as to costs.
...............................
(S. Talapatra, J)
[
Savitri Ratho, J. I agree.
...............................
(Savitri Ratho, J)
Orissa High Court, Cuttack.
The 20th day of March, 2023.
L. Murmu, Senior Stenographer.
