Sujit Barman Roy, C.J.
1. By this habeas corpus petition under Article 226 of the Constitution of India, the petitioner has prayed for quashing the order of detention dated 12-2-2003 issued by the District Magistrate, Ganjam under the provisions of the National Security Act, 1980 so as to prevent the petitioner from acting in any manner prejudicial to the maintenance of public order.
2. Case of the petitioner, in brief, is that he was former Chairman of Aska Notified Area Council and he belongs to Indian. National Congress. Due to political rivalry with the present ruling party, the petitioner incurred displeasure of the leaders of the present ruling party in the State. In furtherance of political vendetta against him the impugned order of detention was issued by the District Magistrate. The order of detention as issued by the District Magistrate under the provisions of Sub-section (2) of Section 3 of the National Security Act reads as under :
'ORDER
Whereas I, Shri Sanjeeb Kumar Mishra, I.A.S., District Magistrate, Ganjam have been directed in Government of Orissa, Home Department Order No. 6183/C dated 18-12-2002 to exercise the powers conferred by Sub-section (2) of Section 3 of the National Security Act, 1980;
Whereas I am satisfied that with a view to preventing Surjya Polei alias Surjya Narayan Polei aged 27 years, s/o Somanath Polei of village Pakalapalli, P.S. Aska, District Ganjam from acting in any manner prejudicial to the maintenance of public order, it is necessary to make the following order :
Now, therefore in exercise of powers conferred by Sub-section (2) of Section 3 of the National Security Act, 1980, I do hereby direct that the said Surjya Polei alias Surjya Narayan Polei aged 27 years s/o Somanath Polei of village Pakalapalli, P.S. Aska in the district of Ganjam, who is now in judicial custody in Circle Jail, Berhampur vide Aska P.S. Case Nos. 174/2002 and 286/02, be detained in Circle Jail, Berhampur, until further orders.
Sd/-
DISTRICT MAGISTRATE,
'GANJAM
Dated 12-2-2003'
3. The said order of detention under Section 3(2) of the National Security Act was served upon the petitioner while he was in judicial custody in connection with aforesaid two police cases. Subsequently, the District Magistrate, Ganjam by his letter No. 189/Res. dated 13-2-2003 informed the petitioner about the grounds of detention. The grounds of detention which were served upon the petitioner were both in English as well as Oriya. The petitioner was given option to make representation against the said order of detention before the State Government, the Central Government or the Board constituted under the provisions of the National Security Act. Accordingly, the petitioner submitted written representation before the Chairman of the said Board. However, it appears from the pleadings of the respective parties that grounds of petitioner's detention were considered by the Board and it found no infirmity whatsoever in the impugned order of detention and rejected the representation. The petitioner also made representations before the State Government as well as the Central Government. On perusal of the relevant file produced before us by the learned counsel for opposite parties and on going through the affidavit filed on behalf of the State, we find that such representations of the petitioner before the State Government as well as the Central Government were rejected and the petitioner was duly communicated accordingly.
4. In the grounds of detention as communicated to the petitioner it was, inter alia, claimed by the District Magistrate that the petitioner was a diehard anti-social and his anti-social activities posed serious and continuous threat to the public order and tranquillity in Aska town and its surrounding areas. It is alleged that the petitioner was involved in a series of heinous crime and unleashed a reign of terror and panic in the aforesaid locality with the help of the supporters of the petitioner. It is also claimed in the said ground that the petitioner has no ostensible means of livelihood and he is earning his livelihood by collecting 'Dada Mamuli' from businessmen and private bus operators as well as from illicit liquor trade. The law abiding citizens of the locality are afraid of the petitioner for which they do not dare to raise their voice against the antisocial activities of the petitioner.
In June, 1997 for assaulting one Ulli Maharana with a bhujali, a case being Aska P.S. Case No. 127 dated 23-6-1997 under Sections 342/294/324/506/34, IPC was registered against the petitioner and in that case charge-sheet was duly filed against the petitioner.
Again, on 1-9-1999 at about 11 a.m. petitioner along with his associates being armed with deadly weapons assaulted and murdered one Saheb Parida and for this reason a case being Aska P.S., Case No. 127 dated 1-9-1999 under Section 302/34, IPC was registered against him. Though this incident was allegedly committed in broad day light in a busy locality of the town, even then none could dare to intervene or resist the atrocious acts committed by the petitioner and his associates. In this case also a charge-sheet was filed against the petitioner and his associates. Due to undue influence exercised by the petitioner and his associates upon the witnesses they could manage to get the order of acquittal.
Further, on 22-5-2001 during night the petitioner along with his associates broke open the office room of Sriram Yubak Sangha and ransacked it and set fire to the office papers and banners. The shop of one G. Santosh Patra was also damaged and his plastic chairs were looted by the petitioner and his associates. For this incident Aska P.S. Case No. 82 dated 23-5-2001 under Sections 148/380/427/506/149, IPC was registered against the petitioner and after conclusion of investigation a charge-sheet was also filed against him.
Again on 23-5-2001 night at about 10.40 p.m. the petitioner and his associates being armed with deadly weapons went to College Chhak, Aska and made murderous assault on said G. Santosh Patra by throwing live bomb at him as a result of which he sustained severe bleeding injuries. Accordingly, Aska P.S. Case No. 83 dated 24-5-2001 under Sections 148/341/307/294/506/149, IPC and under Sections 3 and 4 of the Explosive Substances Act was registered against the petitioner and his associates and in that case the Police after usual investigation submitted a charge-sheet against the petitioner and his associates. During the very same night at 0.30 a.m. the petitioner along with his associates being armed with deadly weapons went to Oriya Sahi, Aska and terrorised the general public by brandishing a sword and broke open the office of Sriram Yubak Sangha and ransacked the same. While this incident was being committed, the night patrolling constables of Aska Town P.S. who were on duty tried to intervene, but due to the challenge to them by the petitioner and his associates the said constables had to leave that place. In this connection also Aska P.S. Case No. 84 dated 24-5-2001 under Sections 457/427/34, IPC was registered and after usual investigation a charge-sheet was filed against the petitioner and his associates. Likewise many other cases in the early part of 2001 have been referred to in the grounds communicated to the petitioner for his detention. Apart from the aforesaid cases, some of the police cases involving Commission of offences during 2002 on various dates were also referred to in the grounds of detention. The District Magistrate in the concluding paragraph of the grounds of detention opined as under :
'The very prospect of your release on bail is creating panic among the peace loving citizens of the locality. Now you are in judicial custody in Aska P.S. Case Nos. 174/02 and 286/02. It is apprehended that there is every likelihood of your release on bail. If you will be released on bail, it is certain that you will again indulge yourself in heinous crime and continue to act more vigorously in a manner prejudicial to the maintenance of public order in Aska and its adjoining areas which will definitely affect public order in view of your clear criminal background. As such, it is necessary to prevent you in doing so by an order of detention for maintenance of normal life and public order. Hence, the detention. The proposal of Superintendent of Police, Ganjam is enclosed.
You are hereby informed that you are at liberty to represent your case against the order of detention to the State Government/Central Government/Advisory Board duly constituted by the State Government under Section 8 of National Security Act, 1980 and also to claim personal appearance before the said Board.'
5. Upon communication of the aforesaid grounds, the petitioner made representations before the Chairman of the Board and also to the State Government and the Central Government simultaneously. The Board considered the representation of the petitioner and also heard him in person and ultimately rejected the said representation as it could not find any infirmity whatsoever in the impugned order of detention. Subsequently, the State Government as well as the Central Government also turned down the representation of the petitioner. Rejections of the representations of the petitioner were duly communicated to him in writing as it appears from the affidavit filed on behalf of the opposite parties and also from the relevant file produced by the learned counsel for the State.
6. Learned Counsel for the petitioner vehemently contended that at the time the detention order was served upon the petitioner or subsequently when the grounds of detention were communicated to him, the petitioner was in judicial custody in connection with two police cases. No bail petition was pending before the concerned Court and therefore, the conclusion of the District Magistrate that there was bright prospect of his release on bail or that it was apprehended, that there was every likelihood of his release on bail was unfounded. No material has been disclosed in the grounds of detention as to why such an apprehension was entertained by the detaining authority that the petitioner was likely to be released on bail very soon. Therefore, the learned counsel for petitioner contends that the order of detention was passed mechanically and without application of mind, and accordingly the order of detention should be quashed. Further contention of the learned counsel for the petitioner is that the petitioner was acquitted on trial subsequently in both these cases and hence there is absolutely no Justification for his continuous detention. It needs to be mentioned here that Aska P.S. Case No. 174 dated 27-2-2002 was registered at the Police Station under Sections 364/365/34, IPC. Likewise, Aska P.S. Case No. 286 dated 21-12-2002 under Sections 506/427/34, IPC was registered. The petitioner was in judicial custody in connection with these two police cases when the order of detention was served upon him.
7. On a bare perusal of the grounds communicated to the petitioner, it appears that the petitioner leads a criminal life. He is involved in series of crimes committed at various points of time commencing from 1997. He continued the same type of activities even in 2002 before he was arrested and detained.
8. However, contention of the learned counsel for petitioner that the petitioner was in judicial custody in connection with two cases and there was no material before the detaining authority that the petitioner was likely to be released on bail very soon merits serious consideration.
Learned counsel for the petitioner cited a decision of the Apex Court in Ramesh Yadav v. District Magistrate, Etah, AIR 1986 SC 315 : (1986 Cri LJ 312). In this case the Apex Court held that where an order of detention was passed because the detaining authority was apprehensive that in case the detenu was released on bail he would again carry on his criminal activities in the area, same was not proper. If the apprehension of the detaining authority Was true, the bail application had to be opposed and in case bail was granted, challenge against that order in the higher forum had to be raised. Merely on the ground that an accused in detention as an under-trial prisoner was likely to get bail, an order of detention under the Act should not ordinarily be passed.
Further reference can be made to another decision of the Apex Court in Binod Singh v. District Magistrate, Dhanbad, Bihar, AIR 1986 SC 2090 : (1986 Crl LJ 1959). In this case the Apex Court held that where the order of detention under Section 3(2) of the Act was served upon the detenu, when he was already in Jail in respect of a murder case and there was no indication that this factor or the question that the said detenu might be released or that there was such a possibility of his release, was taken into consideration by the detaining authority properly and seriously before service of the order of detention, the continued detention of the detenu under the Act would not be justified. The Apex Court in the aforesaid judgment further observed that the power of directing preventive detention given to appropriate authorities must be exercised in exceptional cases as contemplated by the various provisions of different statutes dealing preventive detention and should be usedwith great deal of circumspection. Theremust be awareness of the facts necessitating preventive custody of a person for socialdefence. If a man is in custody and there isno imminent possibility of his being released,the power of detention should not be exercised under preventive detention law. Andif that is the position, then however, disreputable the antecedents of a person might havebeen, without consideration of all the afore- said relevant factors, the detenu could nothave been put into preventive custody. It wasfurther observed by the Apex Court in theaforesaid case that in that case there weregrounds for passing out the detention order, but after that the detenu had surrendered for whatever reasons, therefore theorder of detention though justified when itwas passed but at the time of service of theorder there was no proper consideration ofthe fact that the detenu was in custody orthat there was any real danger of his releasenor does it appear that before the servicethere was consideration of this aspect property.
9. In the instant case though the detaining authority expressed his apprehension in the statement of grounds of detention as communicated to the petitioner that the petitioner was likely to be released on bail in connection with two cases in which the petitioner was detained in judicial custody, but no material facts on the basis of which such apprehension was founded have been disclosed in the said statement of grounds of detention. In these circumstances, we are constrained to hold that the detention order was passed without having any material before the detaining authority that the petitioner was likely to be released on bail very soon. Therefore, we are further constrained to hold that the impugned order of detention was passed without proper application of mind to this aspect of the case in the sense that the detaining authority had absolutely no material before him for expressing the apprehension that the petitioner was likely to be released on bail.
10. Learned counsel for petitioner also referred to a number of decisions of this Court wherein it has been held that without material before him the detaining authority cannot hold that the detenu who was then in judicial custody in connection with some police cases was likely to be released on bail and on this finding this Court in a number of cases quashed the order of detention.
11. He also cited a decision of the Supreme Court in Amritlal v. Union Government, AIR 2000 SC 3675 : (2001 Cri LJ 474). It was held in this judgment by the Apex Court that there must be cogent materials before the officer passing the detention order that the detenu was likely to be released on bail. The inference must be drawn from the available material on record and must not be the ipse dixit of the officer passing the order of detention. Likelihood of the detenu's moving an application for bail is not at all a cogent material and the detention order based on such material is liable to be quashed.
12. In Bishi Keshan Pradhan v. State of Orissa, (2003) 24 Orissa CR 810 : (2003 Cri LJ 279), it was held by this Court that neither the District Magistrate had recorded any satisfaction that there was any possibility of the petitioner being released on bail nor he would indulge in the activities prejudicial to the public order in case he was released on ball and on that basis this Court quashed the order of detention. Therefore, mere recording of opinion that there was possibility of the detenu being released on bail from custody without any material in support of such opinion will not be enough Justification for issuing the order of detention under the preventive detention law. Similar view was again reiterated by this Court in Sunil Rajgarhia v. State of Orissa, (2003) 24 Orissa CR 814 : (2003 Cri LJ 122).
13. In the instant case, no material has been noted by the detaining authority in the grounds of detention that the petitioner was likely to be released on bail. In the absence of such material, conclusion of the detaining authority that the petitioner was likely to be released on bail is absolutely without any basis.
14. In the result, we are left with no option but to allow this petition and accordingly, we quash the order of detention dated 12-2-2003 passed against the petitioner. We further direct that the petitioner be set at liberty forthwith unless his detention is required in connection with any other proceeding.
A.S. NAIDU, J.
15. I agree.