Judgment:
A. Pasayt, J.
1. The order of detention dated 6th September. 1994, which is challenged in this Habeas Corpus writ application, has been passed by the District Magistrate, Cuttack. in exercise of powers conferred by Sub-section (2) of Section 3 of the National Security Act. 1980 (in short'the Act')'with a view to prevent Kunumunia alias Sisir Mohanty (hereinafter referred to as 'detenu') from acting in any manner prejudicial to the maintenance of public order. Aforesaid detenu was directed to be interned in the Circle Jail, Choudwar in pursuance of the said mittimus. Order of detention is Annexure-1 to the writ application. The application has been filed by the younger brother of the detenu.
2. Two points essentially have been urged in support of . this writ application. First it is submitted that the detenu was in judicial custody and without any satisfaction being reached -that the detenu was likely to be released on bail or to be ordered for release, the order of detention has been passed. Secondly, it is submitted that there has been unexplained delay in disposal of the representation filed by the detenu. The stand of detaining authority is that the detaining. authority was aware of the fact that detenu was in custody. Since it was apprehended that detenu might be released on bail and might indulge in further antisocial activities, the order of detention was passed. So far as the delay aspect is concerned, it is submitted that there is no hard and fast rule as to the period within which the representation is to be disposed of. Nevertheless the matter has been dealt with utmost expedition by the concerned authorities.
3. A preventive detention is not punitive but precautionary measure. The object is not to punish for having done something but to prevent and intercept him before he does it again. No offence is proved, nor any charge is formulated and the justification of such detenting is suspicion or reasonable probability and there is no criminal conviction which can only be warranted by legal evidence. Preventive justice requires an action to be taken to prevent apprehended objectionable activities. (See Rex v. Hallidey, 1917 AC 260 : Mr. Kubic Dariusz v. Union of India and Ors.) AIR 1990 SC 605. But at the same time, a person's greatest of human freedoms, i.e.. personal liberty is deprived, and therefore. the laws of preventive detention are strictly construed, and a meticulous compliance with the procedural safeguards, however, technical is mandatory. The compulsions of the primordial need to maintain order in society, without which enjoyment of all rights, including the right of personal liberty, would lose all their meanings, are the true justifications for the laws of preventive detention. Sometimes the deprivation of personal liberty of individuals becomes imperative to protect the society from denigrating. Laws that provide for preventive detention posit that an individual's conduct prejudicial to the maintenance of supplies of commodities necessary for the community can provide grounds for a satisfaction that similar propensities on the part of the person concerned are likely and there is a possible future manifestation. This jurisdiction has been described as a jurisdiction of suspicion, and the compulsions to preserve the values of freedom, of a democratic society and of social order sometimes merit the curtailment of the individual liberty. (See AIR 1989 SC 364) Ayya alias Ayub v. State of U. P. and Anr.). To lose our country by a scrupulous adherence to the written law said Thomas Jefferson would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the means. No law is an end itself and the curtailment of liberty for reasons of State's security and national economic discipline as a necessary evil has to be administered under strict constitutional restrictions. No carte blanche is given to any organ of the State to be the sole arbiter in such matters. A constitutional protection is given to every detenu which mandates the grant of liberty to the detenu to make a representation against the detention, as imperated in Article 23(5) of the Constitution. It also imperates the authority to whom the representation is addressed to deal with the same with utmost expedition. The representation is to be considered in its right perspective keeping in view: 'the fact that the detention of the detenu is based on subjective satisfaction of the authority concerned, and infringement of the constitutional right conferred under Article 22(5) invalidates the detention order. Personal liberty protected under Article 21 is so sacrosanct and so high in the scale of constitutional values that it is the obligation of the detaining authority to show that the impugned detention meticulously accords with the procedure established by law. The stringency and concern of the judicial vigilance that is needed was aptly described in the following words in Thomas Paeham Oales' case: 1981 (6) OBD 376.
'Then comes the question upon the habeas corpus. It is a general rule, which has always been acted upon by the Courts of England, that if any person procures the imprisonment of another he must take care to do so by steps, all of which are entirely regular, and that if he fails to follow every step in the process with extreme regularity the Court will not allow the imprisonment to continue.'
Whenever there is executive invasion on personal liberty, the Court has to weigh in golden scales whether the personal liberty is to be placed at a high pedestal regardless of the social cast involved in the release of a possible renogede. Observations to similar effect were made by the Supreme Court in (lchhudevi v. Union of India): AIR 1980 SC 1983. Judged in this background, the question is whether the detention as directed in the instant case is one where the procedural sinews suffered from any weakness to warrant interference.
4. In matters where the detention orders are passed in rela- tion to persons who are already in Jail under some other laws, the detaining authorities should apply their mind and show their awreness in this regard in the grounds of detention, the chances of release of such persons on bail and stating the necessity of keeping such persons in detention under the preventive detention laws. Subsisting custody of the detenu by' itself does not invalidate an order of his preventive detention, one the decision must depend on the facts of the particular case. Preventive detention being necessary to prevent the detenu from acting in any manner prejudicial to the security of the State or to the maintenance of public order etc. ordinarily, it is not needed when detenu is already in custody. The detaining authority must show its awareness to the fact of subsisting custody of the detenu and take that factor into account while making the order. If the detaining authority is reasonably satisfied on cogent materials that there, is likelihood of his release and in view, his . antecedent activities which are proximate in point of time he must be detained in order to prevent him from indulging in such prejudicial activities the detention order can be validly made. Where the detention order in respect of a. person already in custody does not indicate that the detenu was likely to be released on bail, the order would be vitiated (See N. Meera Rani v. Govt. of Tamil Nadu, AIR 1989 SC 2027: Dharmehdra Suganchand v. Union of India, AIR 1990 SC 1196). The point was gone into detail in Kamarunnissa v. Union of India, AIR 1991 SC 1640. The principles were set out as follows. Even in the case of a person in custody, a detention order can be validly passed (1) if the authority passing the order is aware of the fact that he is actually in custody: (2) if he has reason to believe on the Basis of reliable material placed before him (a) that there is a real possibility of his release on bail and (b) that on being released, he would in all probability indulge in prejudicial activities, and (3) if it is felt essential to detain him to prevent him from so doing. If an order is passed after recording satisfaction in that regard, the order would be valid. In the case at hand the order of detention and grounds of detention do not show awareness of custody and/or possibility of release on bail, and/or apprehension aspect. So the detention order is illegal.
5. A few dates need to be noticed for considering the ques- tion whether there has been unexplained delay in dealing with the detenu's representation. The representation was made on 19- 10-1994. the same was forwarded on 24-10-1994 by the District Magistrate to the State Govt. and was received by the latter on 25-10-1994. The parawise comment was furnished by the District Magistrate on 25-11-1994, the representation was rejected by the Chief Minister on 2-12-1994 and communication was made of such rejection thereafter. In the counter affidavit filed by the State, no details have been given as to how the matter was dealt with by the State Government between the period from 25-10-1994 to 25-11-1994. The representation, is to be dealt with reasonable expedition. What is reasonable expedition depends upon the circumstances of the particular case. No hard and fast rule as to the measure of reasonable time can be laid down But it certainly does not cover the delay due to negligence, callous inaction, avoidable red- tapism and unduly protracted procrastination. There should not be supine indifference and slackness while dealing with a representation. The time imperative for consideration of representation can never be absolute or obsessive. We find substance in the plea of the petitioner that there is unexplained delay in dealing with the representation. That itself is sufficient to hold that the continued detention of the detenu is illegal. The petition is allowed. We direct release of the detenu from custody forthwith unless he is requited to be in custody for some other reason.
P.C. Naik, J.
I agree.