L.MOHAPATRA, J & B,K,PATEL, J.W.P.(CRL) No.1397 OF 201.(Dt.21.03.2012) MD. RAJ.@ MD. AZIM ……..Petitioner. .Vrs. STATE OF ODISHA & ORS. ………Opp.Parties. NATIONAL SECURITY ACT, 1980 - (ACT No.65 OF 1980.– S.3 (2). For Petitioner - M/s. Sangram Ku. Sahoo, G.Sahoo, D.P.Pattanaik & Miss A.Mohanty. For Respondent - Mr. S.D.Das (A.S.G.I.) (O.P.2). B.K. PATEL, J.In this petition for issue of a writ in the nature of habeas corpus, the petitioner has assailed legality of order of detention dated 16.10.2011 under Annexure-5 based on the grounds of detention dated 18.10.2011 issued by opposite party no.3 detaining authority and approved by opposite party no.1 State of Odisha under sub-Section (2) of Section 3 of the National Security Act, 1980 (for short ‘the Act’).
2. Petitioner’s case is that on receipt of grounds of detention dated 18.10.2011 under Annexure-6, he submitted representations under Annexure-7 before the Advisory Board, the State Government and the Central Government on 23.10.2011. Orders of the State Government rejecting the representation was communicated by letter dated 21.11.2011 under Annexure-2 and of the Central Government rejecting the representation was communicated by wireless message dated 18.11.2011 under Annexure-3. Further the State Government confirmed the detention order on 8.12.2011. Thus, there was delay of twenty nine days by the State Government and of twenty six days by the Central Government in considering the petitioner’s representations. It is also the grievance of the petitioner that out of twelve criminal cases referred to in support of the grounds of detention the petitioner had been acquitted in eight cases by the time the detention order was passed. The other four cases were sub-judice. Without application of mind, the detaining authority placed reliance on the cases in which the petitioner had been acquitted. All those cases related to the incidents which allegedly took place between 1991 to 1996. Out of the four other cases which are sub-judice, one case relates to the alleged incident dated 18.9.2002, one case relates to the alleged incident dated 20.12.2006 and two cases relate to alleged incidents dated 10.7.2011 and 28.7.2011 respectively. Therefore, pendency of cases could not be said to constitute continuance of criminal activities as alleged in the grounds of detention. It is also averred by the petitioner that his liberty cannot be curtailed on the basis of cryptic and unreasoned orders passed by the State and Central Governments under Annexures-3 and 4 respectively.
3. In dealing with the contention that orders of the State and Central Governments rejecting petitioner’s representations were cryptic and unreasoned, it is found pertinent to reproduce the orders under Annexures- 2 and 3. Order of the State Government under Annexure-2 reads: “The undersigned is directed to say that his representation dtd.23.10.2011 against the orders of detention under National Security Act, 1980 has been carefully considered by the State Government. On perusal of all relevant papers alongwith PWC of the detaining authority on the representation, it is found that the representation of the detenu is devoid of merit. The State Government, therefore, is constrained to reject the representation dt.23.10.2011 of the detenu Md. Raju @ Azim.”
. Wireless Message under Annexure-3 communicating order of the Central Government rejecting petitioner’s representation reads: “REFERENCE REPRESENTATION OF THE DETENUE MD. RAJ.@ AZIM S/ O MD. RAFIQ @ RAUF AGAINST THE ORDER
OF DETENTION PASSED BY THE DISTRICT MAGISTRATE SAMBALPUR ON 16.10.2011 UNDER NSA1980 (.) THE REPRESENTATION WAS DULY CONSIDERED BY THE CENTRAL GOVERNMENT (.) REQUEST OF THE DETENUE FOR REVOCATION OF THE DETENTION ORDER
PASSED AGAINST HIM HAS not REPEAT not BEEN ACCEDED TO BY THE CENTRAL GOVERNMENT (.) KINDLY INFORM THE DETENUE ACCORDINGLY (.) MATTER MOST URGENT (.)”. In this connection, in the counter affidavit filed by the Central Government it has been averred as follows:
“5. The Union Home Secretary after duly considering the order of detention and grounds for the same, the representation of the detenue and the comments of the detaining authority thereon, rejected the representation on 16.11.2011 and sent the file back to the Joint Secretary……..”
4. Thus, it is evident that representations were disposed of by way of rejection by the State Government as well as the Central Government upon reference to all the relevant papers including the grounds of detention. The orders of rejection have to be read together conjointly with the grounds of detention under Annexure-6. By Annexures2 and 3 orders of rejection were communicated upon finding that the grounds of detention were justified. Therefore, non-communication of detailed reasons on the basis of which representations were rejected by the State and Central Governments is inconsequential.
5. With regard to the contention that the criminal cases referred to by the detaining authority as grounds of detention do not indicate continuous criminal activities on the part of the petitioner, it is found that the following twelve criminal cases have been referred to in the grounds of detention by the detaining authority in order to arrive at the satisfaction to justify petitioner’s detention:- Sl.N Case Nos. o.
1. Sambalpur Town.P.S. Case No.94o”
2. Dhanupali P.S.Case No.77o”
3. Dhanupali P.S.Case No.78o”
4. Dhanupali P.S.Case No.107o”
5. Dhanupali P.S.Case No.117o”
6. Burla P.S. Case No.33 o”
7. Dhanupali P.S.Case No.118 o”
8. Sambalpur TownP.S. Case No.344o”
9. Katarbaga P.S.Case No.144 of 2002 Date of Offence/offences alleged occurren against the petitioner ce 3.4.1991 S.392 I.P.C. Status of the case Trial ended in acquittal 8.6.1992 Ss.147/148/435/436/395/45 2/332/427/ 149 I.P.C. read with S.7 of Crl. Law Amendment Act. 8.6.1992 Ss.147/148/307/332/506/29 4/149 IPC read with S.7 of Crl. Law Amendment Act 5.8.1992 S.392 I.P.C. -do- 2.9.1992 S.392 I.P.C. -do- 15.2.199 Ss.302/34 I.P.C. read with 4 S.25 of Arms Act. -do- 30.8.199 Ss.458/395 I.P.C. 4 -do- 8.12.199 S.379 I.P.C. 6 -do- 18.9.200 Ss.399/402 I.P.C. 2 -do-do- sub-judice 10.
11.
12. Dhanupali 20.12.20 Ss.294-A/420/34 I.P.C. read P.S. Case 06 with S.4 of Prize Chit and No.161of Money Circulation Banned 2006 Act Dhanupali 10.7.201 Ss.468/379/411 I.P.C. P.S. Case 1 No.108 of 2011 Dhanupali 28.7.201 Ss.147/148/323/324/325/30 P.S. Cas”
7. 506/149 I.P.C. read with No.122 of Ss.25/27 of Arms Act 2011 sub-judice sub-judice sub-judice 6. Detaining authority has also referred to Dhanupali P.S. Station Diary Entry Nos.840 dated 29.9.2011 and 844 dated 30.9.2011 in the grounds of detention. It is alleged that on 29.9.2011 receiving information that the petitioner was terrorizing the local businessmen and residents at the point of pistol for collection of illegal ransom at City Railway Station, Sambalpur, the I.I.C., Dhanupali P.S. alongwith his staff arrived there. Shops, hotels etc. were found open, but the owners were absent. Vehicles near the station were left abandoned without the drivers. The Railway Station which ordinarily remained crowded was found completely lonely and deserted. Although some truck drivers and shop keepers were present in some distance, they were found in a state of panic and reluctant to disclose anything. On being assured for security by the IIC, Dhanupali P.S., a few labourers informed that petitioner alongwith his associates came to the Railway Station in motor bikes and at the point of pistol terrorized some local residents for collection of illegal ransom and threatened all against speaking anything about the occurrence. However, none of the local residents ventured to come with any report against the petitioner.
7. It was submitted by the learned counsel for the petitioner that the eight cases in which the petitioner was acquitted related to incidents between the years 1991 to 1996. Out of four cases which are sub-judice, one case related to the incident of the year 2002 and another of the year 2006. It was contended by the learned counsel for the petitioner that the cases in which the petitioner was acquitted after trial should not have weighed in the mind of the detaining authority to arrive at the satisfaction for detaining the petitioner. All those cases related to incidents which took place long back between the years 1992 to 1996. No criminal case is alleged to have been instituted against the petitioner between the years 1996 to 2002. Prior to the year 2011 only two cases one in the year 2002 and another in the year 2006 were instituted against the petitioner. These two cases as well as two cases instituted in the year 2011 are sub-judice and the petitioner is entitled to the presumption of innocence till found guilty by the competent court on completion of the trial. There is no material to indicate that the petitioner was engaged in continuous criminal activities. According to learned counsel for the petitioner in none of the cases there is allegation of disruption of public order. Rather, stray incidents involving offences against individuals were the basis for institution of criminal proceeding.
8. On scrutiny of individual cases, we find that even if the eight cases in which the petitioner was acquitted related to the incidents between the years 1992 to 1996, the four cases which are sub-judice either took place in public places or had the effect of disrupting public order otherwise. In Katarbaga P.S. Case No.144 of 2002 it was alleged that at about 1.00 A.M. in the night some culprits including the petitioner being armed with bhujalis, iron rod and other deadly weapons tried to detain the complainant on the way when he was coming from Thelkoli to Sambalpur in a Maruti Van. Police rushed to the spot and apprehended petitioner and some of the co-accused persons. In Dhanupali P.S. Case No.161 of 2006 it was alleged that the petitioner was involved in running illegal lottery business and thereby promoting and spreading illegal money circulation activities in Sambalpur Town. In Dhanupali P.S. Case No.108 of 2011 it was alleged that petitioner purchased stolen articles. In Dhanupali P.S. Case No.122 of 2011 it has been alleged that at 11.05 A.M. on the date of occurrence the petitioner alongwith coaccused persons demanded illegal ransom from the complainant when he was engaged in rack handling work at City Railway Station, Sambalpur. On complainant’s refusal the petitioner attacked him by dealing blows on his head by means of a pistol and bhujali. As the occurrence took place in broad day light at City Railway Station, panic and fear developed in the mind of general public who fled away from the spot and the locality became deserted. Dhanupali P.S. Station Diary Entry Nos.840 dated 29.9.2011 and 844 dated 30.9.2011 related to allegations of commission of offences in a crowded public place like City Railway Station. Public at large were terrorized and nobody ventured to lodge report. Therefore, even if the cases in which the petitioner was acquitted are not taken into account, we are not persuaded to accept the contention made on behalf of the petitioner that the other four cases and the two Station Diary Entries do not indicate criminal activities having adverse effect on public order.
9. With regard to the contention of delay in disposal of the representations, in the counter affidavits filed by the State and Central Governments averments have been made in support of the stand that there was no delay in disposal of the representations. Paragraph-5 of the counter affidavit filed on behalf of the State Government reads: “ 5. That in reply to the averments made in paragraphs 10 to 12 of the writ application it is humbly submitted that the representation dtd.25.10.2011 of the detenu against the order of detention, was received in the Home (Special Section) Department along with the PWC of the detaining authority on 08.11.2011. The representation was put up on 09.11.2011. A copy of the representation along with a copy of the para-wise comments was sent to the Government of India, Ministry of Home Affairs for consideration in Home (Special Section) Department letter No.3674/C., Dt.14.11.2011. After careful consideration, the State Government rejected the representation of the detenu on 18.11.2011 being devoid of merit. The file was returned to the Special Section, Home Department on 19.11.2011. The rejection of representation, being devoid of merit, was communicated to the detenu through the District Magistrate, Sambalpur in Home (Special Section) Department letter No.3738/C., dtd.21.11.2011. There were Government Holidays of four days during the above period i.e. from 08.11.2011 to 21.11.2011. Hence, the delay in disposal of the representation, if any, is not intentional.”
. Likewise, averments in paragraphs-4 and 5 of the counter affidavit filed by the Central Government read as follows:
“4. That with regard to paras 10, 11 and 12 of the petition, it is submitted that representation of the detenu alongwith parawise comments were forwarded to the Central Government in the Ministry of Home Affairs by the Office of the Collector & District Magistrate, Sambalpur through its letter No.1380/Res. Dated 1.11.2011. The same was received by the Central Government in the concerned Section of the Ministry of Home Affairs on 14.11.2011. The representation was put up for consideration of Union Home Secretary (who has been delegated by the Central Government to decide such cases) on 15.11.2011.
5. The Union Home Secretary after duly considering the order of detention and grounds for the same, the representation of the detenue and the comments of the detaining authority thereon, rejected the representation on 16.11.2011 and sent the file back to the Joint Secretary. The file reached the Section through Director (S) and US(NSA) on 18.11.2011. Accordingly, a wireless message not II/15030/06/2011-NSA dated 21.11.2011 was sent to the Home Secretary, Government of Orissa, Superintendent, Circle Jail, Sambalpur, Orissa, District Magistrate, Sambalpur, Orissa and the detenue, informing that the representation of Md. Raju @ Azim, was considered and rejected by Central Government. A copy of this wireless message was also sent on 21.11.2011 by post to the detenue (through Superintendent Jail) as well as to the Superintendent, Circle Jail, Sambalpur, Orissa with a request to serve the copy meant for the detenue and forward the acknowledgement from the detenue to this Ministry. A copy of the wireless message is enclosed as Annexure C.A.I. Thus, the representation was decided and the decision conveyed with utmost promptitude and expedition.”
10. It was contended by the learned counsel for the petitioner that admittedly the petitioner submitted his representations to the State Government and the Central Government on 23.10.2011. In the counter affidavit filed by the detaining authority, Collector & District Magistrate, Sambalpur it has been specifically admitted that the petitioner submitted representation through the Collector, Sambalpur on 23.10.2011 and after getting the parawise comments the representation alongwith the parawise comments were sent to the State Government in Home Department on 1.11.2011. Long delay of eight days in sending the representation to the State Government remained unexplained. It was further contended that though the representation alongwith parawise comments were received in the Home (Special Section) Department of the State Government on 8.11.2011, unexplained delay of ten days occurred in disposal of the representation. Intervening holidays like Sunday do not explain the delay in any manner. It was further contended that representation of the petitioner was dealt with by the Central Government also in a casual manner. Though the petitioner submitted representation on 23.10.2011, it was received by the Central Government in the Ministry of Home Affairs as late as on 14.11.2011. Thereafter, though the order of rejection is stated to have been passed on 16.11.2011, it was communicated on 21.11.2011 under Annexure-3. There being delay of 28 days in communicating the rejection order by the State and Central Governments, the detention order is not sustainable. Placing reliance on the decisions of this Court in Kalia alias Alok Kumar Das –vrs.- District Magistrate, Dhenkanal & Two Ors.: (2007) 38 OCR 38.and Bijaya Parida –vrs.- State of Orissa and Ors.:
2006. (II) OLR 591.it was contended that detention order is liable to be quashed and the petitioner is entitled to be set at liberty forthwith.
11. In reply, learned counsel for the State and learned Assistant Solicitor General, upon reference to counter affidavits, contended that time taken for disposal of the representations has been duly explained. There was no latches or delay in rejecting the petitioner’s representations.
12. At paragraph 12 of the counter-affidavit filed by the detaining authority opposite party no.3 it has been averred that petitioner submitted representation on 23.10.2011 and the detaining authority after getting the parawise comments sent the representation along with the parawise comments on 1.11.2011. It is evident from the extracts of the counter-affidavits filed on behalf of the State Government and Central Government extracted above that petitioner’s representations were sent by the detaining authority to both the Governments on 1.11.2011 only. The representation was received on 8.11.2011, rejected on 18.11.2011 and communicated to the petitioner on 21.11.2011 by the State Government. The representation sent to the Central Government was received on 14.11.2011, rejected on 16.11.2011 and communicated to the petitioner on 21.11.2011. Thus, there was an interval of more than 28 days between the date of submission of representation and date of communication of the rejection orders. There appears no explanation for delay of eight days between 23.10.2011 and 1.11.2011 for preparing parawise comments on the petitioner’s representation by the detaining authority. It is further noted that though representation was received by the State Government on 8.11.2011, same was rejected on 18.11.2011 and communicated on 21.11.2011. There is no explanation as to why it took ten days for consideration of the representation and another three days for communication thereof. Likewise, though representation was rejected by the Central Government on 16.11.2011 it was communicated to the petitioner on 21.11.2011 and there is no explanation for delay of intervening five days.
13. In Kalia alias Alok Kumar Das –vrs.- District Magistrate, Dhenkanal & Two Ors (supra) it has been observed by this Court that Supreme Court has been repeatedly pointing out that even though no time limit is fixed in the matter of consideration of representation of the detenue, it is the Constitutional mandate under Article 22(5) read with Article 21 of the Constitution that the authorities must keep in mind that such representation must be considered with utmost diligence and promptitude. The Supreme Court has taken this view having regard to the preservation of personal liberty of a citizen specially when such liberty has been curtailed in view of the order of preventive detention passed under the National Security Act. Courts have always zealously guarded the procedural safeguards which have been provided to see that liberty of a citizen is not curtailed except by complying with the statutory safeguards rigidly.
14. In Kalia alias Alok Kumar Das –vrs.- District Magistrate, Dhenkanal & Two Ors (supra) the detenu submitted his representation to the State Government on 21.12.2006 and the same was rejected and communicated by the State Government on 16.1.2007. The State Government took the stand that the petitioner’s representation dated 21.12.2006 was transmitted by the detaining authority on 31.12.2006 to the State Government. It was held by this Court that ten days time taken for transmission and giving parawise comment was rather long. It was held that delay of 26 days on the part of the State Government in consideration of the petitioner’s representation having not been satisfactorily explained, the order of detention was vitiated. In Bijaya Parida – vrs.- State of Orissa and Ors. (supra) the detenu made representation on 2.12.2005 and the same was rejected on 17.12.2005 i.e. about 15 days after submission of representation. It was held that delay of 15 days in disposal of the representation of the detenu having not been specifically explained by the State, order of detention was liable to be quashed.
15. In the present case also there has been unexplained delay of eight days from 23.10.2011 to 1.11.2011 for sending petitioner’s representation by the detaining authority to the State Government and Central Government. Though representation was received by the State Government on 8.11.2011, same was rejected on 18.11.2011 and communicated to the petitioner on 21.11.2011. Therefore, there is no satisfactory explanation for delay of more than 26 days in disposal of petitioner’s representation by the State Government. Therefore, we are constrained to hold that the detention order has been vitiated by delay in disposal of the representation.
16. In the result, the writ application is allowed. The order of detention dated 18.10.2011 under Annexure-6 passed by the District Magistrate, Sambalpur against the petitioner detaining Md. Raju @ Md. Azim is quashed. The petitioner be set at liberty forthwith if he is not required to be detained otherwise. Writ petition allowed.