A Division Bench of the Orissa High Court, consisting of Hon’ble Justice SK Panigrahi and Justice Sanju Pandahas, in the case of, Sk. Mabud @ Mamud @ Madud v. State of Odisha & another, ruled, while quashing order of preventive detention under the National Security Act (NSA), that the legal obligations in cases related to Detention under National Security Act needs to be discharged with great sense of responsibility.
Factual Background
The petitioner was under judicial custody in connection with a matter- under Section 395 of IPC and Sections 25 and 27 of the Arms Act. The Superintendent of Police, by virtue of his letter, addressed to the District Magistrate appealed for the detention of the petitioner under Section 3(2) of the National Security Act.
The SP contended that the present petitioner has been indulging in antisocial activities prejudicial to public order- since 2013. He also emphasized that the petitioner did have any ostensible means of livelihood and only depends upon extortion, robbery and other criminal activities and people lived in constant fear due to the continuous atrocious activities of this petitioner who is a dreaded criminal.
The SP also attached a list of 20 cases, while detailing those he has mentioned that out of 14 cognizable cases, 8 cases have been charge sheeted and the rest 6 are under investigation and will be chargesheeted soon.
In pursuance, the District Magistrate ordered detention of the petitioner stating that there is every possibility that his release on bail will lead to the probabilities of his indulgence in more and more criminal activities. He has further stated that upon thorough perusal of materials of criminal cases registered against him, it is clear that the petitioner is a die-hard anti-social and criminal who has scanty regard for the law of the land.
The aforesaid order of detention was approved by State Government and subsequently based on the report of the Advisory Board, the same was confirmed for a period of three months. The petitioner is in detention since then.
The present Criminal Writ Petition was thus filed by the petitioner invoking Articles 226 and 227 of the Constitution of India challenging the above order of DM- directing detention under Section 3(2) of the National Security Act, 1980.
Case of the Petitioner
The detaining authority while presenting the report against the detenue has not disclosed the basic facts, material particulars which led to passing an order of detention.
It was also not been disclosed that what is the basis and circumstances which led the District Magistrate to come to a conclusion that the detenue is terrorizing the innocent general public and that the order of detention was passed on 12.02.2020 whereas the grounds of detention was served on 16.02.2020 which indicates that the order of detention was passed without considering the materials on record. It is therefore sufficient to activise this Court into examining the legality of detention.
Reasoning and Decision of the Court
While stating that preventive detention is not to punish a person for something he has done but to prevent him from doing it, the Court held:
“Therefore, since the detention order passed on the allegation of involvement of the detenu in a number of criminal cases without disclosing any material in the report of the Superintendent of Police or materials available before the Detaining Authority that there is likelihood of breach of public order, the detention order cannot be sustained.
The detaining authority at the time of passing the order of detention as well as the State Government while confirming the same should take into consideration the nature of allegations and offences alleged in the grounds of detention to examine whether the same relates to ‘public order’ and the normal law cannot take care of such offences and that the acts of the detenu mentioned in the grounds of detention are prejudicial to maintenance of public order or they only relate to “law and order”.
The detaining authorities should exercise the privileges sparingly and “in those cases only where there is full satisfaction”.”
The Court further went on to observe that the- Detaining Authority did not apply its mind before passing the order of detention so as to take the present petitioner to be a dangerous person and that he has become a threat to the public order. It was also observed by the Court that: on overall consideration of the facts and circumstances it- appeared that the Detaining Authority failed to strike a balance between the Constitutional and the legal obligation charged upon him before passing the detention order and the manner in which the power of detention has been exercised in this case.
While considering the approach adopted by the DM, the Court observed that:
“In fact, the District Magistrate has relied on a list of 20 cases provided by the Superintendent of Police while ordering for detention. However, he has not taken into consideration that out of the 14 cognizable cases, there are 6 cases which have not yet been charge-sheeted yet including the one in which the SP is apprehensive that the petitioner may receive bail. Moreover, the learned Counsel for the petitioner has contended that out of the 20 cases, there are a few cases where the petitioner has been acquitted, which has not been brought on record by the SP. Further, the District Magistrate has failed to establish a proper nexus between alleged offence and order of detention under the grounds of detention.”
Preventive Detention is an exception- subjective satisfaction of the detaining authority should be based on objective facts
“Preventive detention is an exception to the normal procedure and is sanctioned and authorized for very limited purpose under Article 22(3)(b) with good deal of safeguards. The exercise of that power of preventive detention must be with proper circumspection and due care. In a regime of constitutional governance, it requires the understanding between those who exercise power and the people over whom or in respect of whom such power is exercised.
The legal obligation in this type of case, need to be discharged with great sense of responsibility even if the satisfaction to be derived is a subjective satisfaction such subjective satisfaction has to be based on objective facts. If the objective facts are missing for the purpose of coming to subjective satisfaction, in absence of objective facts the satisfaction leading to an order without due and proper application of mind will render the order unsustainable.”
The Court also looked into the insufficiency of ‘concrete’ evidence or facts, on the basis of the NSA was invoked-
“the details of the alleged bail application have not been provided in the order of detention, ground of detention or in the application of the Superintendent of Police, Balasore. Further, no details have been given about the alleged similar cases in which bail was allegedly granted by the concerned Court. The only mention regarding bail is in the letter dated 26.12.2019 by the Superintendent of Police, Balasore wherein he had reported that it has come to his knowledge that the petitioner has arranged for his bail. However, this statement is entirely ambiguous and this Court cannot rely on the same. Considering the above submissions, we are of the view that this Court should not allow the petitioner detenue to be kept in custody on the basis of order of detention which is illegal, bad in law hence amounts to illegal custody of the petitioner detenue.”
Held
“Writ Petition deserves to be allowed and accordingly it is allowed. Consequently, the order of detention approved by the State Government on 20.02.2020 is quashed. However, we make it clear that this will not affect the criminal cases pending against the petitioner.”
Case Details
Bench: Hon’ble Justice SK Panigrahi and Justice Sanju Pandahas
Name: Sk. Mabud @ Mamud @ Madud v. State of Odisha & another
Case No.: W.P. (CRL.) NO. 82 OF 2020
Date of Decision: December 16, 2020
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